Eldred vs. Ashcroft
October 10, 2002
Levy and Friends On Political Aspects of Eldred Case

This is a very interesting article because it explores the political solution to Copyright extension that will have to be pursued if we lose with the Supremes.

By Steven Levy (with John Horn, Eleanor Clift, and Brad Stone):

Glitterati vs. Geeks

Lessig worries about letting his supporters down. "If I thought that this was a case where it's hard to know what the right answer was, I'd feel less pressure," he says. Lessig knows that Eldred v. Ashcroft is the best chance to turn the tide in Silicon Valley's war against Hollywood-a conflict where Hollywood has won every round so far. If he fails in court, the fight "would have to shift to the political arena," he says. "And there, we're outgunned."

Here's the full text of the article in case the link goes bad:


Oct 14
Glitterati vs. Geeks
Two heavyweights, Hollywood and Silicon Valley, take the fight over content to the Supremes
By Steven Levy

Oct. 14 issue - Larry Lessig admits it: he's nervous. Who wouldn't be? This week the brainy Stanford law professor makes his first appearance before the U.S. Supreme Court-barely a decade after clerking for Justice Antonin Scalia-to argue a case that could redirect millions of dollars, rejigger the entertainment menu of the entire nation and liberate Mickey Mouse.

IN ITS NARROWEST context, Eldred v. Ashcroft deals with the seemingly arcane issue of the length of copyrights for books, films and music. But it's actually a high-noon showdown between two great industries at odds in the age of the Internet. In one corner there are the big studios and record labels, intent on protecting their property and their turf; their success in winning congressional goodies has been more reliable than a Hollywood happy ending. In the other stand the forces of high-tech innovation, who until recently wore their distrust of government like a badge of pride. Now the techie crowd understands that if Big Media gets the government to help lock up its content, consumers will have less reason to buy new computers and software.

Lessig, 41, is firmly in the Silicon Valley camp, not so he can help boost chip sales but to prevent what he sees as an intellectual-property train wreck. Though a fervent adherent of geek values, Lessig doesn't buy the canard that the Internet is impervious to corporate or governmental attempts to stem that glorious (and sometimes shady) flow of information. In two books ("Code" and "The Future of Ideas") and countless speeches, Lessig has made the case that Hollywood, while whining about digital piracy, has used the courts and Congress to increase its grip on its properties-even to the point where "fair use" of legally obtained copyrighted material is under siege.


Now Lessig has his chance to shift the momentum by overturning the 1998 Sonny Bono Copyright Term Extension Act. The most recent of 11 extensions of copyright terms, it stretches exclusive control of a work from 50 to 70 years after the creator's death (thus assuring that the estate of the bill's namesake, the late pop singer turned legislator, will garner royalties on "I Got You Babe" until 2068). Commercial works like films get a straight 95 years. Because the bill lengthened the term of "Steamboat Willie," Walt Disney's first cartoon featuring the company mascot, it was nicknamed the Mickey Mouse Preservation Act. But it also denies free access to every film made in the 1930s and early '40s, as well as innumerable books and songs.

To Lessig and his legal team, this perverts the original intent of America's Founding Fathers. The Constitution specifies that "to promote the progress of science and useful arts," Congress should secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The payoff for creating something isn't permanent possession of the words or images, but temporary control of what will eventually enter the public domain. Lessig charges that by making the term extensions retroactive, the Bono Act grants an unnecessary windfall to copyright holders of songs and films made long ago. And he fears that subsequent bills-probably keyed to the next times Disney would lose its grip on Mickey-will keep extending the terms so that copyright is perpetual.

The lead plaintiff is Eric Eldred, a 59-year-old computer administrator who put up a Web site where people can download versions of books whose copyrights have expired. Before the Bono Act, Eldred had planned to post Robert Frost's early poems. Now not only will these not enter the public domain, but also for the next 20 years nothing will be added. And if the term was extended again, nothing might ever fall out of copyright. We'd have the greatest way to distribute free information and no new free information to distribute. Is this what the Founders meant by "limited"?


So far, Lessig has lost at every level-"if a limited time is extended for a limited time then it remains a limited time," wrote the district court-but surprisingly got his case to the Supremes. Now, backed by amicus briefs from everyone from Intel to the Phyllis Schlafly's Eagle Forum, he's in a must-win venue.

The backdrop of the Eldred case is a concentrated effort by Hollywood to blunt the impact of the Internet. There's a sense of deja vu to this. Television was supposed to be the death of movies. And in 1982, the film industry's silver-tongued lobbyist Jack Valenti testified that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." (Video sales are now the studios' biggest moneymaker.) Naturally, Hollywood regards the computer/Internet combo as scarier than "Nightmare on Elm Street."

Silicon Valley-ites, accustomed to flying by the pants-seat, urge La-La Land to cool it. "We love disruptive technologies," says Intel's Donald Whiteside. "At first they're threatening, but if you embrace them, they provide opportunities." And, to be fair, Hollywood execs say they are excited by the Internet's promise, and they will adjust their business models to take advantage of the medium. "We don't want to inhibit the computer or stop new devices, just protect our movies," says Valenti. Talks between the two sides are ongoing. But studio heads will withhold the embraces, thank you, until they can be assured that new laws lock down content. In the meantime they obsess about the "thieves" who download free stuff over the Internet. And accuse Silicon Valley of pandering to crooks. "There are supposed to be business ethics in this country," says Peter Chernin, CEO of Fox. "I'm not sure big, important companies should be encouraging the theft of anything, copyright included."

Hollywood has brilliantly leveraged its Beltway know-how-and its clear lead in campaign contributions-to get congressional response. "They've done a great job of setting up laws which really hammer anyone who wants to be innovative," complains Michael Robertson, who was CEO of MP3.com.


Techies particularly loathe certain provisions of 1998's Digital Millennium Copyright Act (DMCA). It outlaws attempts to break any form of copy protection on electronic media. But copy-protection schemes not only stop illegal copying, but legal uses of a product, like making a backup, playing a song or movie on your computer or grabbing a single frame of a movie and putting it on a Web site. Critics call the DMCA a tool that denies the public those forms of fair use.

For instance, as Lessig likes to point out, commercial e-books come with a checklist of permissions that were unheard of in the creaky days of pulp and ink. Depending on the book, you may not be able to lend it to a friend, print out a page, copy and paste a passage into a term paper or even read the book aloud. None of these would violate the copyright, but anyone who hacks the e-book's software to perform these legal acts violates the law.

Such laws offer studios and record labels ammunition in the courts. No one was really shocked that the music industry sued Napster out of existence. But the Valley is outraged that under the DMCA, a Russian company, Elcomsoft, is facing criminal charges for selling a few copies of a program to make legal backups of e-books. And the makers of innovative digital video recorders have had to face a series of legal challenges from Hollywood interests. "They can wrap it in the rhetoric of protecting copyright," says Greg Ballard, interim CEO of SonicBlue (which makes the Replay DVR), "but at the end of day they are trying to exert as much control over the marketplace as possible."

Meanwhile, Hollywood has a new set of laws to push through. Sen. Fritz Hollings's Consumer Broadband and Digital Television Promotion Act mandates hardware-based copy protection in every computer, DVD player, radio and telephone. Silicon Valley hates the idea. "Anything like that is going to be harder to use and more expensive," says Gateway's Brad Williams.


Then there's the Peer to Peer Piracy Prevention Act introduced by Rep. Howard Berman of Los Angeles. Berman has described it as authorizing copyright holders to "use reasonable, limited self-help measures" to frustrate Internet file-swappers, and his staffers bristle at charges that it would allow studios and labels to hack into people's computers in dragnets for the latest Eminem tune or "Spider-Man" bootleg. But if the copyright holders' schemes are so benign, why do they need a law to be indemnified before employing these measures?

The Valley is trying hard to play catch-up. Just last week two tech-friendly representatives introduced bills that would roll back restrictive parts of the DMCA. "If the rights of consumers are not protected in a copyright-product scheme, that scheme is doomed to failure," says Zoe Lofgren, whose district includes Silicon Valley. And the geeks themselves are starting to organize. DigitalConsumer.org is barely six months old but already has almost 50,000 members; the organization urges them to fax legislators before key votes. (E-mail doesn't seem to make an impact on Congress critters.) The group's head, former Excite cofounder Joe Kraus, has a long-term plan that he hopes will lead to passage of a Digital Bill of Rights.

This week, though, the action is in the Supreme Court. Since the issues in the case don't break down into liberal or conservative, legal handicappers are at a loss to predict the outcome. But everyone expects a vivid session as the justices grill Lessig and, representing Congress and its Hollywood backers, Solicitor General Ted Olsen. Outside, there will be wireheads wearing T shirts emblazoned with Article I, Section 8 of the Constitution, which contains the copyright clause.

Lessig worries about letting his supporters down. "If I thought that this was a case where it's hard to know what the right answer was, I'd feel less pressure," he says. Lessig knows that Eldred v. Ashcroft is the best chance to turn the tide in Silicon Valley's war against Hollywood-a conflict where Hollywood has won every round so far. If he fails in court, the fight "would have to shift to the political arena," he says. "And there, we're outgunned."

With John Horn in Los Angeles, Eleanor Clift in Washington and Brad Stone in Silicon Valley

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