S+B: You’ve argued on behalf of Napster, which the music industry has described as merely a tool for violating copyrights. And you make a broad case against increasing the scope of copyright, which many of us in the content creation business might not view as such a bad thing.
LESSIG: The critical thing is to distinguish between how copyright benefits authors and how it benefits publishers in the modern age. I have no hesitation in saying that to the extent copyright benefits authors and creators, it’s a good thing. But it is being used by publishers in the modern environment to stifle innovation. The increased power of the Recording Industry Association of America to limit digital distribution does not benefit musicians; it increases music publishers’ power to limit new kinds of competition.
S+B: You wrote the legal briefs for the plaintiff in Eldred vs. Ashcroft. Eric Eldred produced an HTML book library by putting public-domain books in Web form, but was stymied by Congress’s extension of copyrights. In February, the Supreme Court agreed to hear Eldred. What was the significance of that?
LESSIG: I hope this signals that it takes the case seriously and will take equally seriously the claim that the Constitution restricts Congress’s ability to extend copyright. I believe that will affirm what the Framers intended, which was that copyright grants authors an exclusive right “for a limited time,” and that their work would enter into the public domain after a time. Originally, the simplicity of copyright made it a lawyer-free zone. To the extent we can eliminate lawyers from the process, we’ll encourage a great deal of innovation that right now is stifled.
Reprint No. 02210
Lawrence M. Fisher, [email protected], covered technology for the New York Times for 15 years and has written for dozens of other publications. Mr. Fisher, who is based in San Francisco, is a recipient of the Hearst Award for investigative journalism.