Lawrence Lessig Answers Your Questions on Copyright, Corruption, and Congress

Lawrence Lessig

Last week we solicited your questions for Stanford Law School Professor (and open-source hero, and anti-corruption leader) Lawrence Lessig. (Past Q&A’s can be found here.)
You asked good questions about copyright, corruption, and other topics, and Lessig responded with equally thoughtful answers, including such tasty pieces of advice as:

Never underestimate the importance of naïveté in launching critical political reform.

and:

If the Internet has taught us anything, it is that you can always get people to do what they already want to do.

Stephen Colbert inadvertently tested out the latter statement last month, when he explicitly told viewers to not remix his interview with Lessig, which focused on copyright. (Lessig said he was fine with it.)
Videos like this one popped up on YouTube shortly thereafter:

Thanks to all of you for your questions and to Lessig for his answers.

You’ve spent most of your life studying, researching, and teaching about “copyright in the digital age.” “Political corruption” strikes me as a radically different field from that. What was your motivation for switching fields of study? Or are these areas more related than they appear on the surface?
— Sam Carter

A decade’s work against IP extremism taught me two things: first, that people — teachers, parents, archivists, entrepreneurs, and many many artists — recognized the insanity in the current war; and second, that members of Congress didn’t even understand the issue. Some say that’s because they’re clueless. I don’t think that’s right. Instead, I believe Congress doesn’t get it because it cares less about making sense of copyright policy and more about raising dollars for political campaigns. When you recognize (as it took me way too long to recognize) that this is the same in a wide range of public policy contexts, including some of the most important (e.g., global warming), you realize the root cause here — corruption — is the problem that has to be addressed.

Do you see Congress being able to pass any substantial legislation in the future without any kind of event or catalyst attracting the nation’s attention beforehand (i.e. Enron and Sarbanes-Oxley)? It seems like most of the major legislation of the past decade or so has been hastily done in the face of visible public demand and without much thought beforehand.
— Ryan Moreno

Jeez. I don’t think I’ve read a more depressing sentence, ever. I sure hope you’re wrong, but the facts sure suggest you’re right.

In Eldred v. Ashcroft, why didn’t you argue that the retroactive nature of the copyright extension was directly contrary to the constitutional requirement to “promote progress of science”?
— Sam Carter

So we did, almost. The court was unlikely (as we judged, and as the court decided the case, this much we were clearly right about) to read the “progress clause” as an independent constraint on the Copyright Clause (or what should itself be called the Progress Clause). If it did, then it would invite courts to second guess every Copyright Act, asking whether it “promote[d] progress.” So instead of that, we asked the court to interpret “limited times” in light of the requirement to “promote progress,” and hold that because an extended term couldn’t promote progress, it should be held to violate the requirement that terms be “limited.”

File sharing and music piracy have sparked some interesting debates in the last decade as “leaked” material is shared all over the web. What, if any, solution do you deem plausible for the current state of the music industry?
— Samser

It is my view that Congress should enact a compulsory or voluntary collective license to 1) legalize (at least noncommercial) file sharing and 2) compensate artists for any harm such sharing is estimated to cause. The second part of this would secure the objectives of copyright — money to artists. The first part would end the “war” we’re now waging against our kids.

What are your thoughts on the First Sale Doctrine and the general idea of portability with regard to e-books and other digital media? I am looking forward to the day when my ownership rights are not artificially restricted by the technological limits of the device on which I choose to read/view/listen to them.
— Andy O.

The First Sale Doctrine represents an important principle forgotten by copyright extremists — that copyright “protection has never,” as Justice Stevens put it in the Sony Betamax case, “accorded the copyright owner complete control over all possible uses of his work.” But in my view, to restrike a proper balance in the digital age, we need to move away from an architecture of copyright law that triggers regulation upon the copy. Instead, copyright law needs to focus on the economically relevant acts that need to be regulated to create the incentives copyright law should produce — and not on the (impossible, self-defeating, and absurd) objective of regulating every time a computer “copies” a work.

Cleaning out the legislature-for-sale problem is a fabulous goal, but a “donor strike against congressmen who won’t support campaign finance reform”? This seems so naive as to be silly. The money that runs things is not going to stop buying congressmen because the congressmen won’t outlaw the buying of themselves. The more you get individuals to follow your lead, the easier it will be for the big buyers to make the deal at a lower rate, as the importance of their big donations grows as a percentage of the whole. I hope I am missing something here.
— Don Matheson

Answer 1: Never underestimate the importance of naïveté in launching critical political reform.
Answer 2: For the whole of the 102 years since Teddy Roosevelt suggested such an idea, I would have said you were right. But for the first time in our history, I genuinely believe we’re close to building the majority we need to bring about this change. First, the problem has never been this bad. Second, everyone in Congress thinks the current system is broken. Third, no one worth paying attention to in Congress doesn’t view the enormous time spent fund raising — 30 percent to 70 percent of their time — as a complete waste. We’re facing the most important problems our nation has known in a generation, and many are spending most of their time raising money to run for re-election.
More importantly, despite the mistake (of principle) he made in turning down public funding for his own race, I believe Obama will be an important champion of citizen-funded elections, when the revised form of that proposal gets introduced (probably within two weeks). He was a cosponsor of the bill in the last Congress; the only changes will be to add the ability of Congressmen to raise unlimited amounts from citizens contributing $100 or less.
The opportunity for us is to show people how, again and again, real change won’t happen with the system as it is. If you believe in solving global warming, you won’t do it until you solve the problem of campaign finance. If you want health care reform, you won’t get it until you solve the problem of campaign finance. If you want Washington to work again — and more importantly, for people to have any trust in what Congress does — you won’t get it until you solve the problem of campaign finance.
I think the strike is a perfect way to motivate this campaign. If the Internet has taught us anything, it is that you can always get people to do what they already want to do. While most of us don’t want to be giving (large amounts of) money to politicians, Change Congress is now simply offering the public a reason for us all to do what we already want to do. Just say no (as Nancy Reagan said of a different, and no-less-debilitating kind of addiction).
But I don’t think this is the only way to press this issue. We’re talking now, for example, about a proposal suggested by one of my students: why not require members of Congress to keep timesheets, like lawyers or contractors or as just about everyone else does. These time sheets need not report the substance of the work, but just the type of work done. So, e.g., “fundraising calls: four hours; studying legislation: 14 minutes.” Then the public would get a real sense of just how much time our Congress wastes on the insanely wasteful, and eventually corrupting, process of raising money to return to Congress.

You have said (in testimony to the F.C.C. panel in Palo Alto last summer) that net neutrality should not be interpreted to ban differentiated services within the networks of ISP’s. Many other advocates of net neutrality seem to rule this out. What are you advising the new administration do with respect to this issue and what do you think they are likely to do?
— PCB

My position has always been that we should regulate as lightly as we can to get a network where the business model of network owners is abundance, not scarcity. That means that network owners aren’t pricing access and striking exclusive deals with content providers with the purpose of exploiting (and hence profiting from) scarcity.
So as I said at the F.C.C. hearing (and two years before during at least three events in Washington, D.C.), my judgment is that a ban on discriminatory access is all that it necessary to achieve this objective. But if I’m wrong, I would not oppose more regulation. In my view, the strategy should be to speak clearly (neutrality), but deploy as light a regulatory touch as necessary.

In a Google talk last year with Jonathan Zittrain, you said that it is not a matter of if, but when a 9/11 type of attack will happen on the net and the government will use the event to enact (an already written) iPatriot Act. Firstly, what kind of scenarios do you envision this attack taking? And, in your view, or from what you’ve heard, how would the net operate/be monitored under an iPatriot Act?
— Shaun

First, to be clear, I am not talking about a terrorist attack masterminded by bin Laden or the like. I mean instead a traumatic, systemwide failure produced by malware. Second, I believe this is increasingly likely (following Zittrain) because maliciousness has a tendency to get out of control. Like any good parasite, the scum that is abusing the net now (through identity theft, zombie bots, and the like) doesn’t want to trigger a traumatic event. But they can’t perfectly control things, and a large, devastating attack is likely.
I don’t have a clear sense of what the response would be precisely. But as one senior official put it to me, “Vint Cerf will not like it very much.” That’s enough for me to be worried.

Given the huge upside to “incentivizing” public officials, can any system ever eliminate or even substantially reduce corruption? How effective is “transparency”? If laws are being crafted or enforced based on legal or illegal contributions, would the public be better off simply by publicly auctioning the rights to draft legislation or appoint politicians?
— GW

No. We absolutely can create a system where members would be free to decide on legislation based on what their district wants, and not what their funders want. Citizen funding of the nation’s elections would produce that — a system where members get money to run their elections either from citizens contributing no more than $100, or from the Treasury, once they demonstrate viability. Under that system, no one could possibly believe that the results in Congress were being driven by money. That’s not to guarantee good results. It’s just to guarantee results that are not “corrupted” by the improper influence of money.
Will that system eliminate the Randy “Duke” Cunninghams (convicted of bribery) from Congress? No, not completely — though if the system were more sane, saner sorts would participate in the system. But citizen funding will eliminate the power of money to produce the insane dependency that Congress demonstrates right now (again — 30 percent to 70 percent of their time spent raising money). How could that not matter to the results?

Do you find any proposed “optimum copyright” period plausible? If so, which one, and which arguments did you find persuasive?
— Nat Howard

There are two different issues with copyright terms: first, how long should they be? Second, should they ever be extended? The answer to the second question is, as Milton Friedman put it, a “no brainer”: “No. Never.” Copyright is about creating incentives. You can’t create incentives backward. Even the United States Congress can’t order George Gershwin to create anything more. His creativity is over — however sad that may be.
The answer to the first question is harder. The term should be as long as it needs to be to create the incentives to create, but not longer. And the obvious point is that at some point, the promise of future benefits adds essentially nothing to present incentives to create. Economists who have estimated the matter have calculated between 14 and 28 years as an optimal copyright term. I’d be happy even to get it down to 50.
Finally, regardless of the length, the one huge mistake we’ve made is to give up any system to require copyright owners to take steps to maintain their copyright. The result is, after a relatively short time, it is practically impossible to identify the owner of a vast majority of copyrighted work. Our framers insisted on formalities as a condition to getting copyright protection. I wouldn’t go that far, but I would require that after an initial term of automatic protection, a copyright owner would be required to take steps to register or maintain clear title to his or her copyrighted works, after, say, 14 years.
(And to the copyright mavens out there, this requirement would apply to domestic works only, so there’s no “Berne problem.”)

You began your campaign against “corruption” with talks that suggested that Congress was getting it wrong on issues like global warming, nutrition policy, and copyright because of the influence of big money in politics.
Since then, you seem to have shifted focus to emphasize the impact of big money on trust in the system. What explains this shift? Do you still believe that we are getting policy wrong because of the corrupting influence of big money? Is the perceived influence of money more important than its actual influence?
— Walter

I think both are problems, but I’ve not yet figured how to make both points clearly (yet distinctly). The latest version of my talk — found here — uses the “easy cases” of policy that Congress has gotten wrong to suggest that in fact the money must be having an effect: that either Congress is a bunch of idiots (which I don’t believe they are), or something other than good reason is guiding critical areas of governmental policy.
That’s one critical harm caused by the private system of funding elections. But a second is also critically important: that people believe money buys results in Congress. In my district, 88 percent of voters believe so. So whether or not it is true, this belief makes most extremely cynical about the process. That cynicism cannot end until we break with certainty the link between money and results in Congress.

The effects of the Abramoffs of the U.S.A. political firmament seem to be shown as lacking the gravity of the same actions made abroad. Is shame a tool that can be wielded by a press that may be too close to the political classes?
— Tuber1

I think the big story that the press doesn’t cover well is just how ordinary the corruption of government is. The serious problem, in my view, is not members using government to feather their own nests (though as one member put it to me, Congress has become a “farm league for K St.,” which is extremely serious). The most serious problem is instead good people living in a corrupt system. In my view, these “good people” have a moral obligation to change this corrupt system. They have a moral obligation to take a stand against it. We have seen enough to see just how much harm this system is producing. To stand by and let it continue — indeed, to encourage it to continue in its current form — is an act of extraordinary cowardice.

The “pledge” mechanism you’re using at Change Congress is of particular interest to me. You’re asking people to pledge to not contribute money to specific politicians as a way of pressuring them to support a specific proposal. How would this effort put any pressure on a congressman or Senator who already relies on special-interest money and fat cats for his financing?
— Neal Rechtman

The strike works if we get so many people to withhold money from the political system that it begins to hurt. I don’t think we can remove “most” of the money; but even if we can remove $50 million or $75 million, then that’s going to create pressure enough to get attention to this issue. That attention, we hope, gets the leadership to recognize that it is time — finally — to fix this problem.
President Obama said the other night that it is finally time to deliver on the idea Teddy Roosevelt suggested a hundred years ago — health care. But Teddy Roosevelt recognized that important change like that won’t happen until we remove the distorting effect of money. That’s why he also called for citizen funding of the nation’s elections — 102 years ago.

What is so undemocratic about special interests? Aren’t special interests usually groups of citizens who care about an issue?
— Matthew Moran

Nothing is undemocratic about special interests. The undemocratic and corrupting part is when members of Congress become so dependent upon raising money that their attention gets focused upon not what their district wants, but on what those who would fund their campaign want. And of course, that’s not all special interests. It is the subset of special interests who have the capacity to leverage their support into significant campaign funding.
This is, in my view, corruption. And it only gets worse when you recognize that it is affecting not just members of Congress. Just about everyone in Washington today depends upon keeping the system as it is. Staffers on Capitol Hill move increasingly quickly to take jobs in lobbyist firms. Members and bureaucrats do the very same thing. The result is that most with any power in government are keen not to disappoint the lobbyists who come to call upon them. For the lobbyists who plead with them today will become their bosses tomorrow.