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Doc on Lessig on Freedom
I enjoyed Doc's brief note recalling Lawrence Lessig's 2002 Oscon keynote speech. Doc call's Lessig's talk "the geek culture equivalent of Martin Luther King's 'I have a dream' speech." "Use it or lose it" is an apt warning. We have a right to all works of the human mind; they belong by right to all mankind. (Note that the reference is to "works of the human mind". The statement has no direct bearing whatever on anyone's right, or lack of one, to anything made of matter.) We generously refrain for a time from exercising our full rights in newer works in order slightly to reduce the economic risk inherent in marketing them, thereby increasing the chance of profitibility for the author or inventor. This act of self-restraint on the public's part, in which it sacrifices some of its intellectual rights on the margin in order to create rights for authors and inventors for the purpose of encouraging contributions to the public domain, has not been accepted with thanks by the entertainment and music industries. Rather, they seem only greedy for more such sacrifices on our part, and act as if they have a right to expect them.
Human institutions tend to perpetuate themselves at others' expense, and even at the expense of the purposes for which they were originally set up. A possible asymptotic condition resulting from this process can be seen in the grievances of the Senechaussee of Rennes, who in 1789 petitioned the Estates General praying for
Supression de la servitude plus meurtrière du droit de suite de mouline...usage libre des meules `a bras; proscription absolue de la capitation seigneuriale à raison de ces tristes machines; et que la postérité ignore, s'il se peut, qu la tyrannie féodale bretonne, armée du pouvoir judiciare, n'a pas rougi, dans ces derniers temps, de briser les meules à bras, et de vendre annuellement à des malheureaux la faculté de broyer entre deux pierres une mesure d'orge ou de sarrasin. What might originally have been a reasonable way of funding the construction of large mills had degenerated into a lords' right that reached even to one of the simplest of everyday activities. The peasants had to get a "license" even to crush grain. I little doubt the lords defended their "property right" in the milling monopoly with many fine words. (Click here and search for the string '.P 235.' or the string 'ad molendinum'.) A similar progression can, if we are careless, operate in the development of the rights we have given to authors and inventors. Our own Supreme Court has warned us that "the natural tendency of legal rights to express themselves in absolute terms to the exclusion of all else is particularly pronounced in the history of the constitutionally sanctioned monopolies of the copyright and the patent."SONY CORP. v. UNIVERSAL CITY STUDIOS, INC., 464 U.S. 417 (1984), footnote 13. Just as the Breton peasants saw with the lords' milling monopoly, so we are seeing copyright reach ever deeper into our lives. Thanks to the Copyright Term Extension Act (CTEA) works that were new when our grandparents were young will not be graduated to the public domain until we ourselves are grandparents: a term nearly four generations long. Thanks to the "device" provisions of the DMCA it is now seen to be legally dangerous even to discuss data encryption in some circumstances. Maybe people with academic degrees and tenure get a pass, but hobbyists have no such protection. But how do we prevent the further erosion of our rights to the public domain? In 1998 I wrote to my U.S. Senators about the CTEA and recieved an empty-headed response. Michael Eisner was able to convince Senator Lott, who is not even his own Senator, to dislodge the CTEA from committee even though Senator Hatch had pronounced the bill "dead" earlier that year. The balance of lobbying power is lopsidedly against the public's right to the public domain. Groups like the EFF and the FSF are only a start. The EFF's web site hardly contains the words "public domain" at all, and very little mention of the CTEA. The FSF is focused mainly on software, which those who hate the public domain can explain away as a special case. Those who believe in limited copyright and limited patent have far to go before they find their collective voice. I don't know how to get the attention of a legislator in 3 seconds or fewer. Perhaps we should start with the importance of the public domain in pharmaceuticals. The public domain's enemies might explain this away as a special case too, but at least it's a start. We might remind the legislators of the benefits of generic drugs. We might have them imagine a patent term that was so long that by the time the patent expired on a useful antibiotic, many microorganisms had already become resistent: the hypothetical antibiotic would never have been available at generic prices during the time of its greatest usefulness: The public never got the benefit of its bargain with the patentee. Now, what is the public getting in return for the copyrights it gives to authors, if by the time their copyrights expire almost all books are not only out of fashion, but so long out of print that a first edition copy is hard to find ? How "public" is such a public domain then ? There are responses to this message:
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