THE SECOND LIFE OF LAWRENCE LESSIG, PART I

... being a lightly edited transcript of an in-world evening with co-host Philip Linden and the Stanford law professor, Creative Commons advocate, and author of Free Culture. Background here.

Hamlet Linden: About three years ago, Stanford legal scholar Lawrence Lessig stood before the nine Justices of the United States Supreme Court. From one perspective, he was arguing over the interpretation of a single sentence in the US Constitution.

From another angle, he was fighting for the very future of ideas and art-- in America, and by extension, the world.

His most recent book, Free Culture, is a story of that ongoing battle-- what led up to it, how he fought it, and where we can go in the aftermath of the Court's decision. And though it may seem strange, it's actually quite appropriate that he takes his case here (so to speak), in avatar form. As we'll soon find out.

So ladies and gentlemen, from the office of Linden Lab in San Francisco and this hilltop auditorium of Pooley, please join me in welcoming Professor Lawrence Lessig.

[Applause]

Before I turn you over to Philip Linden, I wanted to start off with a few questions on Free Culture to set the context. Let's say you get in the elevator with Senator Orrin Hatch and Daniel Robert Glickman, the new head of the MPAA-- what point from Free Culture would you convey to them, in the short time you have?

Philip Linden [grinning]: We all do that at least once.

Lawrence Lessig: So the thing Orrin should be asked is this: how come the government is spending so much energy regulating creativity? Where's the Republican in that? And second, how come spending so much time protecting this powerful industry against competition, rather than embracing competition as the way we find a new world. Two quick questions before floor three.

HL: Now let's say Senator Hatch and Glickman get out, and in comes a kid who likes to download lots of music and movies via peer to peer-- what point from Free Culture would you convey to him?

LL: I don't have anything to tell the kid. The kid is teaching us something. If you look at the creativity kids have demonstrated using digital technology, that's enough to say that we, professors, lawyers, congressmen, should listen, not lecture.

HL: But what do you tell him [if] he wants to get involved with teaching us more?

LL: Well, he should want to teach us more, because we or the government are quite good at destroying. And the one thing they seem most keen to do is to use the law to protect dying industries, and in that way destroy new worlds. So to speak.

PL: Potentially literally!

HL: It's been nearly two years since Free Culture was published. What significant changes in the world of media and the entertainment industry have you seen since then, and how have they enhanced or modified the arguments you were making in the book?

LL: The explosion of what I call (but would love a better word for) the "read write Internet". The key thing we're seeing now is the Internet used to create and remix culture. The focus two years ago was peer to peer filesharing. But the focus today is the stuff that happens here [in Second Life]. Or in mashups. Or with remixed music. Or anime music videos. This capacity and this creativity is extraordinary. And yet the "war" that that the copyright industry is waging against "piracy" will kill it. At least as a legitimate part of culture.

HL: Tell me a little bit about pleading the Eldred case before the Supreme Court in 2002, and how difficult it was to write about the experience so self-critically.

LL: So Eldred began in 1998. I was a new professor at Harvard. I was a believer in what the law could do. I saw this law -- the Sonny Bono Copyright Term Extension Act. An act that extended the term of copyright for EXISTING works by 20 years. [Eric Eldred wanted to continue uploading works of literature online, as they entered the public domain, and sued for the right to continue doing so against the Bono Act. - HL] The 11th extension of existing copyright terms in 40 years. And I compared it to the Constitution, which says that Congress has the power to PROMOTE THE PROGRESS OF SCIENCE by securing FOR LIMITED TIMES exclusive rights to authors for their writings. And it was clear to me that current practice was inconsistent with the framers’ intent.

Now I had clerked for Justice Scalia. An originalist. A conservative. And so I knew quite well the philosophy of the conservatives. And they believe that you interpret and apply the Constitution as it was originally intended. So I thought: great, we go to the Supreme Court, we show them this law and the original Constitution, and the conservatives will agree with us because of originalism and the liberals will agree with us because of the burden on free speech, and we'll get nine (actually eight -- there's one really pro-copyright person on the Court) on our side.

It was insanely naive.

When we got close to the argument at the Supreme Court, a friend, a law professor, said to me: so I'm convinced you're right on the law. But tell me the last time the Supreme Court voted against all the money in the world.

I told him he was being really boring. That's not how the Court thinks.

He understood something more than I.

HL: In your argument before the Supreme Court, Justice Kennedy asks you for empirical evidence that extending copyright has impeded cultural progress. You keep the focus on a point of Constitutional law, though you now regret not citing such evidence. If you could do it over again, what empirical evidence would you give Justice Kennedy and the Court?

LL: Yeah. It was a good question. The problem is it's hard to point to evidence as in stuff people have counted. But things since then have made the issue clearer. Think for example about the Google book search project. Google wants to index 18,000,000 books and make them searchable. If the book is in copyright, you'll get a "snippet" around the search. If it is not in copyright, then you can see the full book. Of the 18 million books, 16% are out of copyright. 9% are in copyright and in print.

That means 75% are in copyright, but out of print.

Now the publishers say you need to ask permission before you index these books. But how do you ask the 75% of 18 million authors when we have no list of copyright owners, no record of who owns the rights, no way to track down current claimants at all. Yet it stands in the way-- and now threatens Google with a huge law suit-- because the term gets extended and extended. The term for the framers was 14 years, renewable once. It is now life of the author plus 70 years-- which for someone creating in the way Irving Berlin did, would be 140 years.

So, Justice Kennedy, does blocking access to 50-75% of the books in our tradition constitute a burden on our culture?

HL: If you said all that, do you think the case could have turned your way?

LL: People who know stuff say there was no way to win. I still think that two things could have changed their view.

First, I should have been meaner to the conservatives. I should have held their feet to the fire of their own principles-- directly telling them that they couldn't consistently decide that Congress was free to make up whatever term they wanted and that it was limited in all the ways the conservatives have limited Congress. It should have been framed as a-- you choose-- principled or political, question.

The second thing would have been to make the case less about Mickey Mouse, and more about the rest of culture that gets locked up just so we can protect Mickey. Probably 90% of the creativity that had its copyright extended is not commercially available at all. For creativity like films, that means that that works is totally inaccessible.

And when the copyrights for those films expire, the works themselves will literally have expired-- film decays; it will be dust before the copyright ends.

The point is they should recognize that they're choosing-- either help Mickey, or help preserve and make accessible our culture-- at least on terms different from the terms that Hollywood offers.

HL: OK, I think that sets the framework for the book-- I want to turn over the floor to Philip to let him discuss your relation to Second Life and other themes of these ideas impacting with virtual worlds.

Continued tomorrow...