brainwagon

I’m nearing the end of Lessig’s Free Culture, and am at the point in the book where Lessig describes his loss in Eldred v. Ashcroft which challenged the consitutionality of the Sonny Bono Copyright Term Extension Act. It is very interesting on many levels: to see how Lessig strategized, to see what arguments were made and how the justices responded. It’s even somewhat moving to hear his description of his disappointment with the Supreme Court in their ruling, which was contrary to their finding in Lopez, and failed utterly to discuss the merits of Lessig’s argument.

Many of Lessig’s supporters wrote him to tell him that he never had a chance: the Supreme Court simply wasn’t ready to reverse Congress on this matter. So the burden shifts between trying to convince the Supreme Court to trying to convince Congress.

We’ve got a tough row to hoe. The entertainment industry is a powerful lobby and contributes a great deal of money to preserve the monopoly power that long (or practically infinite) terms grant them. It’s hard to see how your average yutz can go toe-to-toe with their interests and come out ahead.

What can we do then? Well, we could try taking a cue from the Open Source world. Open source exists solely because people choose to donate their works to greater the common good. People give up their rights to maintain exclusive rights so that people can build on their work and expand its scope and utility. The Creative Commons provides a useful framework for giving up some of your rights (or all of your rights) and making them available to all. By granting people specific rights under a Creative Commons license agreement, you are saying “I don’t need all the rights granted to me, I’m happy with less” and you encourage others to build upon your creative work.

Another thing you can do is help educate others on the power of public domain resources. For instance, consider the following list of 100 great books in the public domain. You’ll see many familiar books there. How many have you read? (I’ve read 29 of them, 30 if you could the Bible). All of these books are available on Project Gutenberg. Moreover, most of these books are still in print because publishers don’t have to pay royalties for their use. Publishers like Penguin Classics or Dover are free to republish these, often in inexpensive editions which are terrific. If they still had to pay royalties, many of these works would be out of print.

Don’t believe me? Let’s examine a book which is in the public domain, like Alice in Wonderland. Searching on amazon.com, we find that the Signet Classic edition of this book runs for $3.95. Actually, that’s a pretty good buy, because it includes the book Through the Looking Glass as well. Compare this to The Great Gatsby, which was published in 1925 and is therefore still under copyright. We see that the cheapest edition of this book is $9.06, with a list price of $12.95. The Puffin Classic edition of The Three Musketeers costs a whopping $4.99. Hemingway’s The Sun Also Rises (still under copyright) lists for $10.40, with a list price of $13.00. You could work out the cost of the CTEA by multiplying the number of years by the average increase in cost for a book like The Sun Also Rises and the number of copies, and see what that total is. This particular book ranks 2,333 on amazon.com, so you’d imagine that it’s still selling pretty well. Let’s assume it sells ten thousand copies a year, the terms were expanded by twenty years, and the average cost is $2.00 more per copy. The cost (not assuming any kind of inflation) is then $400,000. The CTEA robbed the public out of $400,000 worth of value to perpetuate a monopoly for the copyright holders. Try multiplying that out by all the books which had their terms extended, and you see that Congress handed millions and millions of dollars to copyright owners. The Sun Also Rises would have entered the public domain twice in the last few years except for the laws enacted by Congress to extend terms for which the public at large derived absolutely no tangible benefit. The CTEA was nothing more than the extension of a monopoly for which we all pay.

This message can be brought home by reiteration (perhaps even better and more clearly expressed than I can), but also by making good use of available public domain resources. For instance, if I want to know which Shakespeare play contained the words “If the cause be not good”, I can access a Shakespeare search engine, and find the speech by Williams in King Henry V. This search engine exists because someone saw a need, and there was no need to license the underlying work to achieve it. Try to find a Hemingway search engine. Go ahead.

Well, I’ve run out of steam for today, so I’ll just sum up. What can we do? We can carry on, using the resources that are available to us, and we can choose not to pursue the culture of exclusivity and ownership that current copyright practice promotes. In other words, we change society not by legislating the change, but by changing ourselves.

Addendum: the image illustrating this entry came from Project Gutenberg.