In 1998 Congress, pursuant to its Constitutional power to determine the duration of federal copyright protection, passed a law extending the term of that protection by 20 years. This law brought United States copyright protection in line with that already afforded in Europe. In addition, as the average life expectancy in the United States now exceeds 70 years, the law brings copyright protection in line with the legal vehicle for the posthumous control of tangible property–the law of testamentary trusts, which bases the term of such control on a human lifespan.
Despite the reasonableness of this law, Stanford professor Lawrence Lessig is spearheading a legal challenge to it, culminating in his argument before the Supreme Court this Wednesday. Lessig, who seems to have become, in the words of New York Times writer Amy Harmon, “a rock star for the digital liberties set,” is expected to argue that the law is “overly restrictive of the free-speech rights of would-be users of copyrighted material that previously would have been in the public domain.”
In recent decades we have already seen the “right to free speech” extended to mean the “right” to be provided with a free platform for one’s speech. Anyone who dares to be successful enough to own a property where the public enjoys gathering–e.g., a shopping mall–is for that reason compelled to allow people to speak on that property. “Free” speech thus means: free of any need to earn one’s own physical instrumentalities or audience, or even to pay for the right to borrow someone else’s achievements.
Lessig would have the Supreme Court extend this perversion of free speech to mean: free of any need to pay for the borrowing of someone else’s greatest achievement: original thought. Or worse: free of any need sufficiently to digest that original thought so as to be able to put it into one’s own words. Appropriating and parroting the creation of others is now, according to Lessig, “free speech.”
Lessig and his allies try to downplay what they are doing by making it an issue of finances. They say things like, “the copyright law used to restrict only big business, which is fine–but now it restricts anyone who has access to the Internet.” “Only 2 percent of works protected by copyright,” they go on, “create a regular stream of income for their creators.” Translation: only a small minority of “non-little” people will be hurt by repealing this law, so why not do it? This attack on money, success and big business–no doubt another symptom of the “Enron” era–is shameful and Marxist. How is the Court, as Lessig demands, to “balance the interests” of original thinkers against those for whom “creativity” consists of cannibalizing–and even vandalizing–the products of others’ thought?
The government is expected to argue–properly–that the Supreme Court cannot arbitrarily impose a definition of “limited times.” In other words, the power to set an appropriate time period for copyright protection lies with Congress. Congress has clearly been reasonable in its exercise of that power.
The other main argument offered by supporters of the 1998 law is that, in the long run, the law will promote creative work, and thus the national welfare, by offering higher profits to those who invest in it. This argument–based on the “public good” standard–is intellectually bankrupt and doomed to failure. Opponents simply counter that more creativity will be fostered by allowing people to obtain and build upon existing works. Many “conservatives,” such as Milton Friedman, use the same “public good” standard to argue that the incremental economic payoff provided by the 1998 law is not significant enough to encourage creativity.
Anyone who raises the standard of the “public good” in this context had better be ready to have his rights in any field adjudicated according to the latest iteration of Jeremy Bentham’s utilitarian calculus. In practice, this means according to the premises, preferences, and whims of the judge sitting before him.
An artist or intellectual is often not only or even primarily concerned to reap the monetary benefits of his works; in addition, he wants to be sure that the integrity of the work is protected against mutilation as long as possible. This is especially true if the work conveys an important artistic or philosophic message. If those in the “digital liberties set” plan to have a field day with others’ works of creative genius–bastardizing them into whatever fragments they find appealing, adding any distorting content they choose, then blasting the results all over the internet–what is the point of trying to convey to the world one’s own vital viewpoint? What is the reward offered for trying painstakingly to create one’s vision of truth or of the ideal universe, and to invite readers to share in it, if our nation’s highest court gives Lessig’s gang a formal sanction to practice intellectual vandalism on the finished product?
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