Neil Turkewitz
May 21, 2018 · 10 min read
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My Weekend with Larry Lessig

by Neil Turkewitz

I don’t know Larry Lessig. I mean, I know who Larry Lessig is, but I don’t personally know him. Meaning we have never met. While we have danced in many of the same circles over the past 20 years, we have somehow never had the occasion to come face-to-face. Perhaps because one of us wanted to be President and the other one just wanted to live on the beach and write about issues that moved him. So for all I know, he may be a delightful person — warm, witty, kind. Even though we profoundly disagree on how to improve the world, we might like each other’s company. I don’t mean to put any of that into question, because this isn’t about him. Well, I take that back…it is about Larry Lessig. But not about his personality, but rather about his deeds. His words. The liberties he takes with the truth, and his willingness to deceive in order to advance an agenda that he endorses.

Let me begin by noting that I am personally not that interested in whether he gains financial benefits in the pursuit of his advocacy. I believe that everyone deserves to get paid for their work, and given his track record, I have little doubt but that putting aside the issue of personal finances, he believes in the causes for which he is fighting. I of course can’t help but note that Professor Lessig doesn’t seem to agree that everyone deserves to be paid, and his present advocacy is specifically aimed at denying compensation to artists that recorded music before the arbitrary date of February 15, 1972. This ironically makes the sources of his own compensation a more central part of this story, but there are others exploring that, most notably David Lowery in his recent “Poker the Bear: The Sad Unraveling of Lawrence Lessig.”

My issue with Larry Lessig is that he is fighting to preserve injustice while claiming to represent the public interest, and that he has such little regard for the truth. Like most zealots, he believes that the ends justify the means. And since the ends he seeks are, from his perspective, so important, they justify extreme means. I find fault with both his desired ends, and with the modalities he is prepared to adopt in pursuit thereof. His defense of the worst aspects of the exploitation economy are both incomprehensible and inexcusable.

Let’s explore. On May 18, Larry Lessig published an article in Wired entitled: CONGRESS’ LATEST MOVE TO EXTEND COPYRIGHT PROTECTION IS MISGUIDED. In it, Lessig sets out the World According to Lessig, (hereafter referred to as WAL), and boy does it bear little similarity to the world the rest of sentient life occupies. Lessig was responding to a bill passed by the House of Representatives and currently in the Senate entitled CLASSICS that would address a gap in federal law that allows certain music services to avoid paying performers and labels for music created prior to February 15, 1972 (the date when federal copyright law first protected sound recordings). Now I say he was “responding,” to the legislation, but that is a bit generous, since his criticisms suggest that he in fact did not read the legislation, or more importantly, take the time to understand the surrounding legal environment in which the legislation is situated. And of course, it goes without saying that Lessig was unmoved by the actual injustice of the present situation.

So where did he go wrong? Pretty much from the get-go. He starts off by reciting the unfortunate (from his POV) history of the Supreme Court decision in Eldred v. Ashcroft in which the Court expressly rejected his theory that it offends the Constitution to provide new protection to existing works since there is no quid pro quo leading to the production of new works as contemplated by Article 1, clause 8 of the Constitution granting (and limiting) Congressional authority to “Promote the Progress of Science and useful Arts.” But after reflecting on the adverse Eldred decision, he nonetheless observes that providing protection to works already in existence “without doubt, is not what a system meant to “promote the Progress of Science” was ever intended to be.” Is he being ironic? Alas no, he thinks that WAL is a truth of a higher order than the US Constitution and laws as interpreted by our highest court. It is instructive to look at the text of the Supreme Court decision itself to understand the Court’s clarity in the rejection of Lessig’s contentions here:

Petitioners’ dominant series of arguments, premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author, are unavailing. Also unavailing is petitioners’ second argument, that the CTEA’s extension of existing copyrights fails to “promote the Progress of Science” because it does not stimulate the creation of new works, but merely adds value to works already createdCongress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners’ argument. Also rejected is petitioners’ third contention, that the CTEA’s extension of existing copyrights without demanding additional consideration ignores copyright’s quid pro quo, whereby Congress grants the author of an original work an “exclusive Right” for a “limited Tim[e]” in exchange for a dedication to the public thereafter. Given Congress’ consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the protection offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time.

Lessig hates the Supreme Court decision in Eldred. He had another shot at convincing the Supreme Court of the merits of his interpretation of Congressional authority under Article 1, Clause 8 a few years later in the case of Golan v. Ashcroft in which he challenged an aspect of the Uruguay Round Agreements Act which “restored” protection of certain works that were in the US public domain in order to meet our obligations under the TRIPS Agreement. In an amicus brief that he filed on behalf of Creative Commons, Lessig argued that:

“For more than 200 years, the public domain has provided a diverse, rich, and robust body of material for the public to use, share, draw from, and build upon. Throughout this period of time, those who have relied upon the public domain to innovate have been able to trust that work found within its confines would not later be swept back within copyright and the exclusive control of private parties. This case will determine whether this long-standing principle will endure, and along with it, determine the fate of innumerable new works derived from work found within the public domain.

Congress is free to set the term of copyright as long as it likes (so long as the term is limited); it is even free to extend the term of a subsisting copyright (again, so long as the extension is “limited”). But it should not, under the Progress Clause, have the power to restore a copyright to a work that has entered the public domain — at least if the Progress Clause is to be accorded any substantial meaning.

Our Constitution is unique in the manner in which it secures the power to grant monopolies over speech. Amicus urges this Court to honor this difference, by recognizing limits in the scope of the Progress Clause that would make sense of the plain intent of our Framers to cabin this power carefully.”

So what did the Supreme Court think of Lessig’s proposed principle — that protection of a work, once in the public domain, may not be resuscitated consistent with the Constitution? Not much — neither amused nor moved. They held:

The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copyright’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘limited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.”

Our decision in Eldred is largely dispositive of petitioners’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copyrights. Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time prescription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm…

Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protection.

The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of . . . new works.” Because §514 deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid.

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ . . . because it does not stimulate the creation of new works.” In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works.”)

Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination — as opposed to creation — was viewed as an appropriate means to promote science. Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.”

Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause.

So let’s come back to Lessig’s Wired article. CLASSICS would require parties to compensate artists and labels for certain digital transmissions not presently covered under federal copyright law. Lessig, fully familiar with the Supreme Court decisions in Golan and Eldred given his direct participation in them, nonetheless offers the following: “That this statute has nothing to do with the constitutional purpose of “promot[ing] Progress” is clear from its very title. The “Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act” (or CLASSICS) is as blatant a gift without any public return as is conceivable. And it’s not just a gift through cash; it’s a gift through a monopoly regulation of speech… Equally without doubt, this is not what a system meant to “promote the Progress of Science” was ever intended to be.

Interesting that what is manifestly clear — so clear that is “without doubt” to Lessig, is manifestly wrong according to the Supreme Court. It’s that WAL thing again. He “clearly” believes that the US Supreme Court lacks standing to interpret the Constitution once he has made his views known.

I had intended to address other aspects of Lessig’s deception, including in particular: references to copyright as monopoly; his apparent failure to understand that pre-72 sound recordings are not in the public domain; and the fact that this legislation doesn’t extend term at all — but others have addressed aspects of this, and I fear that I am already testing the bandwidth of some readers, so I will close here. But not without noting what I think may be the most remarkable few sentences of his piece: “The act doesn’t harmonize American law with international law. Indeed, it creates more disharmony. No other jurisdiction creates a similar right anywhere.” I am speechless. Is Lessig truly unaware that the US is a complete outlier in our failure to provide rights to performers and labels for broadcasting and other forms of communication? I cite the 2015 Report of the Register of Copyright on Copyright and the Music Marketplace:

Internationally, the United States is an outlier. Virtually all industrialized nations recognize a more complete public performance right for sound recordings than does the United States. The failure of U.S. law to do the same causes U.S. record companies and artists to forgo an estimated $70–100 million in royalties for foreign exploitations of their works due to the lack of reciprocity.”

And of course, performance rights for labels and performers have been a part of the international legal framework since the 1961 Rome Convention — a Convention to which the US has never acceded due in large part to our failure to provide adequate rights of communication to the public to performers and labels. So in a way Lessig is correct — no other jurisdiction creates a similar right. But precisely because other jurisdictions have created broader rights and have been unwilling to permit commercial broadcasters and other entities to determine whether they need to pay for their programming. You know, it’s the justice thing. But I fear that Lessig has something of a blind spot in that arena.

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