Next Great Copyright Act Conference: Larry Lessig

David Nelson Memorial Keynote Lecture

Introduction by Andrew E. Monach, Morrison & Foerster LLP

Lawrence Lessig, Harvard University

Aaron Swartz: How will you ever solve the problem of laws that choke creativity with a government that’s so corrupt. Lessig said that wasn’t his field; he did internet/copyright policy. Swartz: But as a citizen, is it your field? There is a flaw at the core of our democracy.  We have to change the bovine quality of our reaction to this flaw. We have to recognize the threat.

Many people focus on problems of speech, or corporate speech. He locates the problem elsewhere: the fundraising.  Modern American congressperson learns which buttons need to be pushed in order to survive. Develop a sixth sense about how what they do might affect ability to raise money, in every little detail.  “Always lean to the green.”  Not an environmentalist statement.  Time is one problem, but not even the most important—it’s also the problem of the people from whom they raise this money, because of the distribution of contributions.  People whose views matter: .05% of America, the same as the number of people named Lester or perhaps Sheldon.  Either way, a bad system for reflecting the Framers’ objective of representative democracy representing the people, the rich no more than the poor.

This is also an unstable system. When such a tiny number have power, even a tinier fraction has the capacity to block reform, especially for things like the next great copyright act.

COICA: bill never made it to the floor, but came back as SOPA/PIPA, and resulting public campaign.  After a year’s organizing, they were successful in blocking it in House and Senate after important organizations like Google, Reddit, Wikipedia went dark demanding Congress reject the legislation. A victory not just for copyright but for the recognition of the role of special interests—corruption.

SOPA/PIPA fight idn’t build a mechanism for getting needed reform—can’t count on the internet to show up when you press a button.

Another strategy: cooperation. Roosevelt made all sorts of deals with the devil to get reform. What kind of deal might make sense here?  Landes & Posner: indefinitely renewable copyright, in exchange for a real efficient system where unrenewed works would become available.

If we need copyright to internalize positive externalities, need carbon tax to internalize negative externalities—but we had “copyright wars” waged on what Jack Valenti called “terrorists,” which is to say our kids.  Activist, aggressive legislation, but we still have done nothing to solve negative externalities of climate change—the environmental pirates, who don’t believe they should participate in internalizing negative externalities. He’s not a copyright abolitionist/doesn’t believe in piracy. But when he thinks about strategies, he wonders whether there isn’t a role for strategic pro-piracy advocacy.  Imagine the Pirate Party’s platform: so long as there are environmental pirates, people who insist on not paying for the externalities they cause, we will encourage copyright pirates, and renounce it when there’s a deal.

Swartz’s tragedy. Targeted JSTOR because of something he learned when he heard that it would cost $250 million to liberate JSTOR for the third world.  But that was a misunderstanding.  MIT was never asked whether the access was unauthorized; prosecution went on 2 years without anyone ever asking this fundamental jurisdictional question.  Hope was the one thing we didn’t give Aaron; his lawyer was optimistic and his friends were but that wasn’t delivered to Aaron.

Swartz would look at this event as a hopeful one. Even without political reform, maybe, there is a way to think about copyright reform. Because if we think about 10 years ago v. today there’s been extraordinary progress.  End with a call to us as citizens.

Fred von Lohmann: can we democratize the giving of money? Netflix has 40 million subscribers, relatively intensive internet users. Shouldn’t we use the tools we already have to unlock small giving? We can click a button to buy at Amazon; why not click a button to give $10 to a politician who has our views on these issues. If $70 million had been raised in SOPA/PIPA, Judiciary Committee would be saying something very different today.

Lessig: we could deploy that strategy to reform the system, or that could be our reform.  With respect to the first, we’re going to launch an experiment based on work by political analysts. But without public funding/legislation that will never happen at the level of Congress; maybe for president.  But you need tax credits or something else to get candidates to focus on a broad swath of their constituents.