COPYRIGHT CONUNDRUM

June 2003
		Is downloading copyrighted music tantamount to stealing? Lawrence Lessig, an expert on Internet law from Stanford University's Law School, and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America, answer your questions about this heated debate.

Online NewsHour Special Report: Copyrighting in the Digital Age Forum Introduction If I can go to my local library and check out and copy a CD for free, why can't I copy a digital CD from an online friend? Given that distributing a large number of Xerox copies of a book without proper authorization is illegal, why would P2P be any different? Please explain how the DMCA will or will not impede further technological innovation and scientific research of new media devices? And, does this law violate my fair use rights as a consumer? Are the RIAA's "cease-and-desist" notices to alleged Internet pirates a violation of my personal property rights? How do musicians benefit from the RIAA's actions against alleged Internet 'pirates'? Would music companies consider developing an online service similar to that of Apple's iTunes or develop their own P2P networks? Does the U.S. Constitution rely on patent and copyright laws as way to advance the arts and sciences, or to protect business interests? Is it illegal to download the MP3 version of a song that I have already purchased? Would outlawing anti-copyright devices in theory extend copyright terms for eternity?

Casey Muratori from Kirkland, Wash. asks: Does the U.S. Constitution rely on patent and copyright laws as way to advance the arts and sciences? Or, does the Constitution promulgate copyright laws for the sake of profit and entrepreneurialism? Now that the copyright term is lengthened from the founder's original 14 years to seventy years, how does this extension better serve the public interest? Does the advent of new media and technologies, like digital and the Internet, change the interpretation of the copyright laws in the constitution and how U.S. copyright laws should work? Thanks. Lawrence Lessig from Stanford Law School responds: The United States Constitution plainly states that the purpose of copyright and patent legislation is to "promote the progress of science and useful arts." Congress's power is not the power to grant copyrights or patents. Congress's power is to "promote progress." In the view of many (but not the view of the lobbyists working for the content industry) that means that Congress should only grant copyright and patent protections where they have a good reason to believe that their monopolies will "promote the progress of science and useful arts." In my view, most copyright and patent law does promote progress. But there is an important and growing list of exceptions. Software patents do nothing to promote progress in software. And -- a cause dear to my heart -- extending the terms of copyrights for works that already exist does nothing to promote progress. This was the subject of the Supreme Court's recent decision in Eldred v. Ashcroft. In 1998, Congress extended the terms of existing and future copyrights by 20 years. For corporate works, that means the term of copyright is now 95 years. For works by authors, the term is now the life of the author plus 70 years. That was the eleventh time that Congress extended the terms of existing copyrights in the last 40 years. And because of a change in the law in 1992, the effect of that change is to triple the average copyright term in just the last 30 years. Now do these extensions of the terms for existing works do anything to promote the progress of science? Obviously not. As 17 economists, including five Nobel Prize winners, including Ronald Coase, Milton Friedman, James Buchanan, Kenneth Arrow and George Akerlof concluded, there is no plausible argument that retrospective extensions do anything except make some special interest groups richer, while making the public domain much poorer. Most people focused on the first part of that claim -- that, for example, Disney had spent a great deal of money to extend the copyright terms to protect Mickey. But the more important part of that claim is the second -- that these extensions make the public domain poorer. Of all the work produced between 1923-42 (the first twenty years affected by the extension in 1998), only two percent has any continuing commercial value. Yet these extensions block all existing copyrights from entering the public domain -- just to benefit the two percent. There is absolutely no benefit from that kind of extension; absolutely no claim that it "promotes the progress" of anything. What about the extension for works that have not yet been created? As [Supreme Court] Justice Breyer calculated in his opinion in the Eldred case, the term is already so long as to give the creator 99.9997 percent of the value of a perpetual term. Adding more years to 99.9997 percent doesn't help the creator at all. Matt Oppenheim from the Recording Industry Association of America responds: You are right that the basis for copyright protection is in the Constitution, and that its goals are to further the arts. Article I, Section 8 of the Constitution provides that: "The Congress shall have the power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." As our society has grown and our economy has developed, Congress has extended the term of copyright protection a number of times. Given the increased cost to produce and distribute copyrighted works, Congress has tried to keep pace with what it has believed is necessary to continue to incentivize creators and publishers. Congress also was concerned that American creators should not have less copyright protection than is commonly provided abroad, and they therefore extended the term to match the copyright term in Europe and elsewhere. Last but not least, the answer your question about the intersection of copyright and the Internet is: no, the copyright law does not differ whether the alleged infringement is online or physical. Infringement is infringement. There is no special rule that says it's okay to engage in theft if it is on the Internet.