By Lawrence Lessig
19 June 2000
Our country's founders put certain intellectual property rights into the Constitution. But they weren't downloading software.
John Warnock, founder, chairman and CEO of Adobe Systems (ADBE), traveled to Capitol Hill this month to testify about the "new economy." His real target, however, was more specific: software piracy and the "disturbing" trend among the news media and academia to present "a false trade-off" between growth and "copyright and patent protections."
Many have worried, Warnock reported, that "overly strong intellectual property protections might have a chilling effect on Internet development." Warnock disagrees, apparently embracing "overly strong" protection. The Internet has flourished, he testified, "not in spite of" but "because of" strong intellectual property protection. Indeed, so important is intellectual property, Warnock (a former academic) lectured the committee, that the framers of our Constitution "placed intellectual property rights in Article I of the Constitution."
Now, I'm a big fan of Adobe. I think PDF, Adobe's portable document format is the greatest thing since sliced spectrum. As a happy user of Microsoft Word, I hate it when others send me documents in some obscure word-processing format. Keep your word processor preferences to yourself! With a PDF, I can read what you write without buying your word processor. (Here's a bit of code that truly ought to be bundled with the operating system.)
But you can love the company, yet hate its politics. Let's talk about the "false trade-off," Professor Warnock, academic to academic. What really is our tradition? Is everyone who questions "overly strong" intellectual property a "pirate"? (If so, then someone owes me an eye patch.) Does calling for balance make one a communist?
Start with the framers. Warnock is quite right that our forefathers expressly recognized the legitimacy of government-granted monopolies to subsidize "authors" and "inventors" in their work to "promote the Progress of Science and useful arts." But this is not because the framers were especially fond of "intellectual property." (Jefferson, for example, hated it.) Their purpose instead was as much to limit that power as to grant it. For unlike ordinary property (which, like a diamond, is forever) the Constitution expressly requires that any copyright be granted for "limited times." If Congress passes a law to dedicate your front lawn to the public domain, the Constitution requires that you be compensated. But the same Constitution also requires that all copyrights, after a limited term, fall into the public domain without compensation. The framers were as ... concerned about establishing a constitutional requirement for an intellectual commons as they were about establishing a power to create intellectual property.
The first Congress followed the framers' balanced view, with, in my view, very balanced copyright laws. The initial act gave authors an exclusive right to publish and vend "maps, charts and books." It therefore essentially regulated only publishers, of which there were about 130 in 1790. The act did not regulate other kinds of writings, such as music or newspapers; nor did it restrict the use of the writings that it did regulate. That is, one could copy, translate or make a derivative use of these maps, charts and books without the permission of the author. The act therefore gave the author no real control over the work once published, beyond limitation on competition. The initial term of this protection was relatively short - 14 years - and the vast majority of "writings" were never copyrighted. (Between 1790 and 1799, 13,000 titles were published in America, but only 556 were copyrighted.) And finally, let's not forget that until 1891, foreign works were not protected at all. Our scorn for China notwithstanding, we were, for the first 100 years of our history, a pirate nation.
Since 1790, a lot has changed. Copyright is no longer restricted to "maps, charts and books." It reaches anything "fixed in a tangible medium of expression." It no longer regulates only publishers; it reaches anyone who makes a "copy." Nor is copyright limited to copying: A derivate use of the original work can also be subject to the original copyright. And finally, no longer is the initial term relatively short - for individuals, the term is the life of the author plus 70 years (for Irving Berlin, 144 years); for a company, the term is 95 years (for Windows 95, until 2090). Copyright has thus morphed from a short, relatively insignificant regulation of publishers, to a restriction that is effectively perpetual, and that regulates everyone with access to a computer or Xerox (XRX) machine.
You don't have to be a pirate to be concerned about this trend, especially when one adds to it the changes that cyberspace is now inducing. For in addition to these protections granted by law, code writers for copyright holders have built technologies that supplement the law. This code adds to the control that copyright holders have over the use of their content. Using this code, copyright holders can now direct, for example, how often a book can be read, or by whom; they can control whether or what parts can be copied, or on what machine the book can be read. This additional control is facilitated through software - and this software is now backed by the force of law. The anti-circumvention provision of the Digital Millennium Copyright Act makes it an offense to write code to interfere with this use-controlling code, regardless of whether the use would be considered "fair" under the copyright law.
The framers never envisioned giving copyright holders perfect control over the use of their writings; nor did they imagine that the limited monopoly they established would effectively run forever. They imagined a limited right that would create an incentive for authors to produce, and that "after a short interval," as Justice Joseph Story put it, what was produced would pass to the "full possession and enjoyment" of the public "without restraint."
They imagined all this, it turns out, for very good reason. As economists have confirmed, it is not the case that every increase in intellectual property protection always will increase innovation. Intellectual property is both an input and an output in the information economy. Raising the costs of inputs can dampen more than incent innovation. What is needed with intellectual property is balance, not extremes. Not "overly strong" intellectual property protection, but appropriately strong intellectual property protection.
Balance is not found by red-baiting. Those who question the scope of copyright law, those who doubt the wisdom of a world where use is perfectly controlled, those who remind our politicians of the framers' original balance, those who insist on balance - those people are not pirates. No doubt pirates should walk the plank; no doubt theft should be stopped; no doubt the Internet increases the risk of theft quite dramatically. But to question this radical increase in control over the ordinary use of copyrighted material by ordinary individuals is not to question a resolve against pirates.
Everyone is entitled to his or her own (corporate) view. Adobe is entitled to press "overly strong" intellectual property protection if it pays. But the "false trade-off" is the one Warnock presents: between pirates and him. The true trade-off is between balance and him. The choice is between the balance that our framers, and our tradition, firmly recognized, and the recent race to increase government regulation of innovation through copyright.
You are right, Mr. Warnock, to look to the Constitution to understand the nature of intellectual property. I suggest you do so again. Right there, in Article I, Section 8, Clause 8, is a power granted to Congress - to secure "exclusive Rights" for "limited times" "to promote Progress." A balance, in other words, between intellectual property and an intellectual commons, to the end of progress.
The text is available on my Web site, Mr. Warnock. In a PDF file.
Lawrence Lessig is a professor at Harvard Law School and a fellow at Berlin's Wissenchaftskolleg. His Web site is http://cyber.law.harvard.edu/lessig.html.