COPYCENSE

“I am not … ‘leaving the movement.’ ‘The movement’ has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, ‘the movement’ can’t succeed either.” — Lawrence Lessig.

Lessig Blog. Required Reading: The Next 10 Years. June 19, 2007.

Stanford law professor Lawrence Lessig announces his retirement from the intellectual property debate, and his focus on “corruption” as his new academic and activist core interest. Lessig has proclaimed before that he was retiring from focusing on intellectual property, and like the rapper Jay-Z and too many boxers, he did not walk away. His latest series of writings on his blog, however, suggest he is, in fact, ready to step out the door.

If he Lessig does step away, his work in and on behalf of fair intellectual property has been valuable and admirable. We’ve not always agreed with some of the initiatives for which he has advocated. For example, we’re a bit skeptical of the Creative Commons initiative because it moves copyright issues into the realm of contract law. (This is an issue we’ve discussed recently.) Instead, we think copyright should remain firmly a federal public policy debate.

We also think the litigation team Lessig lead in the Eldred v. Ashcroft case seriously depersonalized the case into a strictly legal argument that was hard to win. We have opined often that the only way federal courts are going to change their holdings in copyright cases is if the debate is less about economics and law, and more about the simple fact that people — individuals — are getting screwed. This position has a chance to build a social revolt against protectionist intellectual property legislation, and with such a revolt may come legislative and judicial change.

For example, if one examines some of the civil rights cases from a strictly legal perspective, one could argue that some decisions were inconsistent with prevailing statutory and case law at that time. Law does not occur in a societal vacuum, however, and with regards to civil rights legislation, society decided it was time to eliminate legally sanctioned discrimination that was grounded in historically inaccurate and damaging opinions on race and ethnicity. Federal courts and legislators had to change the laws or risk anarchy.

We were privileged to witness the Eldred oral arguments, and the level of constitutional argument in that room on that October day was brilliant. It also was cold, lifeless, and meaningless to the average Joe or Jane that merely wants to remix public domain works into something fun, useful, and culturally valuable. There was no outrage or risk of anarchy on the copyright term extension issue (even though a well-formulated grass roots campaign may have stoked such outrage).

And inside the courtroom, Lessig’s argument generally failed to make apparent what we’ve heard him make apparent in other venues: Disney’s manipulation of the term extension issue means that a 10-year-old girl in Iowa can’t come up with the next great animated character because Disney wants to shackle culture to stuff its wallets.

(To be fair, Lessig has conceded he made strategic errors in the Eldred litigation.)

But these issues are minor compared with the good Lessig has done and the enormous effort he has spent in trying to get it right and make things equitable. Lessig has put his energy and his money where his mouth has been, and right or wrong, we respect and thank him for that.

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