Patent absurdity: how extended copyrights choke the economy.

• Author: Silverstein, Gordon
• Position: On Political Books - Book Review

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity By Lawrence Lessig Penguin, $24.95

It's not often that a tenured professor at one of America's top law schools is willing to confess error. In the (copyrighted) words of rapper Eminem, Lawrence Lessig had one shot, one opportunity, one moment--and, Lessig admits, he let it slip. That moment came on Oct. 9, 2002, when he appeared before the United States Supreme Court to ask that it overturn the Sonny Bono Copyright Extension Act, a federal law that had been passed four years earlier. The result of a blitzkrieg of lobbying from movie moguls, record producers and a parade of Hollywood glitterati, the act stretched copyright protection from 50 years beyond the lifetime of the author or creator to 70 years, on the principle--according to its advocates--that intellectual property should be treated no differently than real estate or the family car. If it's yours, it's yours forever. And when you die, it goes to your heirs. If they can make a buck off your hard work, well, good for them. What's wrong with that?

For Eric Eldred, plenty. In 1995, Eldred, a New Hampshire native, had tried to engage his daughter's interest in literature by exploiting the Internet. He digitized such classic books as Nathaniel Hawthorne's The Scarlet Letter, making them text-searchable, and then went a step further, embedding the hypertext with links to maps, pictures, references, and other elements that could bring 17th-century New England to life for 21st-century readers. None of this was illegal as long as he stuck to Hawthorne, whose work had lost its copyright protection nearly a century ago. But when Eldred decided to add some of the work of New England's most famous poet to his collection, he ran into the Estate of Robert Frost--and the Sonny Bono Act. Under the law, nothing written since 1923 could be added to Eldred's Web site unless he could track down the copyright holders and secure their permission. This didn't sit well with Mr. Eldred, and like so many unhappy Americans before him, he got himself a lawyer--Lessig, a leading authority on the intersection between the Internet and intellectual property and a professor of law at Stanford University.

When Eldred v. Ashcroft eventually appeared on the Supreme Court's docket, Lessig had good reason to think this would be a winner. Not only did he understand the nascent field of cyber law as well as any lawyer around, but he also thought he understood what arguments would appeal to the court's conservative majority. Though this would be Lessig's first appearance before the court, he had spent time as a clerk to Justice Antonin Scalia. Before that, he had clerked for Circuit Court Judge Richard Posner, the bench's leading advocate of laissez-faire economics; later, he had taught at the University of Chicago. Lessig was convinced that he could win this case by making a very conservative argument to a very conservative court. He would focus on the Constitution itself, and on broad principles about the allocation and limits of power. Others urged him not to rely solely on the court's well-documented instinct to slap the congressional hand away from the cookie-jar of power; they argued that the court would only intervene if Lessig could convince the justices that this latest extension of copyright would do real damage to the United States and its economy.

But as he readily admits in his new book, Free Culture: How Big Media Uses Technology and the Law, to Lock Down Culture and Control Creativity, Lessig saw...