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are still written, and film is primarily shot-to the virtual domains 
where they increasingly are distributed, the context of creativity 
has been transformed by the Internet. Many of the constraints that 
affected real-space creativity have been removed by the architecture, 
and original legal context, of the Internet. These limitations, 
perhaps justified before, are justified no more.
But the Internet itself is also changing. Features of the 
architecture-both legal and technical-that originally created this 
environment of free creativity are now being altered. They are being 
changed in ways that will re-introduce the very barriers that the 
Internet originally removed.
There are strong reasons why many are trying to rebuild these 
constraints: They will enable these existing and powerful interests 
to protect themselves from the competitive threat the Internet 
represents. The old, in other words, is bending the Net to protect 
itself against the new.
MICKEY MOUSE
BLOAT
The distinctive feature of modern American copyright law is its 
almost limitless bloating-its expansion both in scope and in 
duration. The framers of the original Copyright Act would not begin 
to recognize what the act has become.
The first Copyright Act gave authors of "maps, charts and books" an 
exclusive right to control the publishing and vending of these works, 
but only if their works had been "published," only after the works 
were registered with a copyright registry, and only if the authors 
were Americans. (Our outrage at China notwithstanding, we should 
remember that before 1891, the copyrights of foreigners were not 
protected in the United States. We were born a pirate nation.)
This initial protection did not restrict "derivative" works: One was 
free to translate an original work into a foreign language, and one 
was free to make a play out of a novel without the original author's 
permission. And because of the burdens of registering, most works 
were not copyrighted. Between 1790 and 1799, 13,000 titles were 
published in America, but only 556 copyright registrations were 
filed. The vast majority of creative work was free for others to use; 
and the work that was protected was protected only for limited 
purposes.
After two centuries of copyright statutes, the scope of copyright has 
exploded, and the reach of copyright is now universal. There is no 
registration requirement-every creative act reduced to a tangible 
medium is now subject to copyright protection. Your e-mail to your 
child or your child's finger painting: both are automatically 
protected.
This protection is not just against competing publications. The 
target is not simply piracy. Any act of "copying" is presumptively 
regulated by the statute; any derivative use is within the reach of 
this regulation. We have gone from a regime where a tiny part of 
creative content was controlled to a regime where most of the most 
useful and valuable creative content is controlled for every 
significant use.
The first Congress to grant copyright gave authors an initial term of 
14 years, which could be renewed for 14 years if the author was 
living. The current term is the life of the author plus 70 
years-which, for an author like Irving Berlin, would mean a 
protection of 140 years. More disturbingly, we have come to this 
expanded term through an increasingly familiar practice in Congress 
of extending the term of copyright both prospectively (to works not 
yet created) and retrospectively (to works created and still under 
copyright).
In the next 50 years, it extended the term once again. In the last 40 
years, Congress has extended the term of copyright retrospectively 11 
times. Each time, it is said with only a bit of exaggeration, that 
Mickey Mouse is about to fall into the public domain, the term of 
copyright for Mickey Mouse is extended.
You might think that there is something a bit unfair about a regime 
where Disney can make millions off stories that have fallen into the 
public domain but no one else but Disney can make money off Disney's 
work-apparently forever. But even if the scope of controlled content 
has grown, in principle there remains a constitutional limitation on 
this expansion. Some content is to stay in the commons, even if most 
useful content remains subject to control.
PIANO ROLLS
Control is not necessarily bad. Copyright is a critical part of the 
process of creativity; a great deal of creativity would not exist 
without the protections of the law. Large-budget films could not be 
produced; many books would not get written.
But just because some control is good, it doesn't follow more is 
better. As conservative Federal Circuit Judge Richard Posner has 
written, "The absence of copyright protection is, paradoxical as this 
may seem, a benefit to authors as well as a cost to them." It is a 
benefit because, as we've seen already, creative works are both an 
input and an output in the creative process; if you raise the cost of 
the input, you get less of the output.
More important, limited protection has always been the rule. Never 
has Congress embraced or the Supreme Court permitted a regime that 
guaranteed perfect control by copyright owners over the use of their 
copyrighted material. As the Supreme Court has said, "The Copyright 
Act does not give a copyright holder control over all uses of his 
copyrighted work."
Instead, Congress has struck a balance between assuring that 
copyright owners are compensated and assuring that an adequate range 
of material remains in the public domain for others to draw upon and 
use. And this is especially true when Congress has confronted new 
technologies.
Consider the example of "piano rolls." In the early 1870s, Henri 
Fourneaux invented the player piano, which recorded music on a punch 
tape as a pianist played the music. The result was a high-quality 
copy (relative to the poor quality of phonograph recordings at the 
time) of music, which could then be copied and played any number of 
times on other machines. By 1902, there were "about seventy-five 
thousand player pianos in the United States, and over one million 
piano rolls were sold."
Authors of sheet music complained, saying that their content had been 
stolen. In terms that echo the cries of the recording industry today, 
copyright holders charged that these commercial entities were making 
money off their content, in violation of the copyright law.
The Supreme Court disagreed. Though the content the piano player 
played was taken from sheet music, it was not, the Court held, a 
"copy" of the music that it, well, copied. Piano roll manufacturers 
(and record companies, too) were therefore free to "steal" the 
content of the sheet music to make money with their new inventions.
Congress responded quickly to the Court's decision by changing the 
law. But the change was an interesting compromise. The new law did 
not give copyright holders perfect control over their copyrighted 
material. In granting authors a "mechanical reproduction right," 
Congress gave authors the exclusive right to decide whether and on 
what terms a recording of their music could be made. But once a 
recording had been made, others had the right (upon paying 2 cents 
per copy) to make subsequent recordings of the same music-whether or 
not the original author granted permission. This was a "compulsory 
licensing right," which Congress granted copiers of copyrighted music 
to assure that the original owners of the copyrighted works would not 
get too much control over subsequent innovation with that work.
The effect of this compromise, though limiting the rights of original 
authors, is to expand the creative opportunity of others. New 
performers had the right to break into the market, by taking music 
made famous by others and re-recording it, after the payment of a 
small compulsory fee. Again, the amount of this fee was set by the 
statute, not by the market power of the author. It therefore was a 
far less powerful "exclusive right" than the exclusive right granted 
to other authors.
This balance is the rule, not the exception, when Congress has 
confronted a new technology affecting creative rights. It did the 
same thing with the first real "Napster" in our history-cable 
television. Cable TV was born stealing the content of others and 
re-selling that content to consumers. Suppliers of cable services 
would set up an antenna, capture the commercial broadcasts made by 
television stations, and then resell those broadcasts to their 
customers.
The copyright holders did not like this "theft." Twice they asked the 
Supreme Court to shut it down. Twice the Court said no. So it fell to 
Congress to strike a balance between cable TV and copyright holders. 
Congress in turn followed the model set by player pianos: Cable TV 
had to pay for the content it broadcast, but the content holders did 
not have an absolute right to grant or deny the right to broadcast 
its content. Instead, cable TV got a compulsory licensing system to 
guarantee that cable operators would be able to get permission to 
broadcast content at a relatively modest level. Thus content holders, 
or broadcasters, couldn't leverage their power in the television 
broadcasting market into power in the cable services market. 
Innovation in the latter field was protected from power in the former.
These are not the only examples of Congress striking a balance 
between compensation and control. For a time there was a compulsory 
license for jukeboxes; there is a compulsory license for music and 
certain pictorial works in noncommercial television and radio 
broadcasts; there is a compulsory licensing scheme governing 
satellite television systems, digital audio home recorders and 
digital audio transmissions.
These "compromises" give the copyright holder a guarantee of 
compensation without giving the copyright holder perfect control. The 
epitome of copyright's protection, they represent the aim to give 
authors not perfect control of their copyrighted work, but a balanced 
right that does what the Constitution requires-"promote progress."
The unavoidable conclusion about changes in the scope of copyright's 
protections is that the extent of "free content"-meaning content that 
is not controlled by an exclusive right-has never been as limited as 
it is today. More content is controlled by law today than ever in our 
past. In addition to limited compulsory rights, an author is free to 
take from work published before 1923; is free to take noncreative 
work (facts) whenever published; and is free to use, consistent with 
fair use, a limited degree of others' work. Beyond that, however, the 
content of our culture is controlled by an ever-expanding scope of 
copyright.
SAVE PORN,
KILL NAPSTER?
Courts are policy makers, and they must ask how best to respond. 
Should they respond by intervening immediately to remedy the "wrong" 
said to exist as a result of the Internet's concussive impact? Or 
should they wait to allow the system to mature, and to see just what 
harm there is?
In the context of porn, privacy and taxation, courts and the 
government have insisted that we should wait to see how the network 
develops.
In the context of copyright, the response has been different. Pushed 
by an army of high-powered lawyers, greased with piles of money from 
PACs, Congress and the courts have jumped into action to defend the 
old against the new.
Ordinary people might find these priorities a bit odd. After all, the 
recording industry continues to grow at an astounding rate. Annual CD 
sales have tripled in the past ten years. Yet the law races to 
support the recording industry, without any showing of harm. (Indeed, 
possibly the opposite: when Napster usage fell after the 
court-restricted access, album sales fell as well. Napster may indeed 
have helped sales rather than hurting them.)
At the same time, it can't be denied that the Net has reduced the 
ability that parents have to protect their children. Yet the law 
says, "Wait and see, let's make sure we don't harm the growth of the 
Net." In one case-where the harm is the least-the law is most active; 
and in the other-where the harm is most pronounced-the law stands 
back.
Indeed, the contrast is even stronger than this, and it is this that 
gets to the heart of the matter.
The Internet exposes unprecedented realms of copyrighted content to 
theft, but it also makes it possible (with the proper code) to 
control the use of copyrighted material much more fully than before. 
And it opens up a range of technologies for production and 
distribution that threaten the existing establishment.
Congress can address the increased exposure to theft, however, 
without a protectionist regime for existing media control. Control, 
however, is precisely Hollywood's and the recording labels' 
objective. In the context of copyright law, the industry has been 
very clear: Its aim, as RIAA president Hilary Rosen has described it, 
is to assure that no venture capitalist invests in a start-up that 
aims to distribute content unless that start-up has the approval of 
the recording industry. This industry thus demands the right to veto 
new innovation, and it invokes the law to support its veto right.
Some see these cases (in particular the MP3.com and Napster cases) as 
simple; I find them very hard. But whether they are simple or hard, 
Congress could intervene to strike a balance between the right of 
copyright holders to be compensated and the right of innovators to 
innovate.
The model for this intervention is the compulsory license. The first 
real Napster case was cable television. Congress's aim in part was to 
assure that the cable industry could develop free of the influence of 
the broadcasters. The broadcasters were a powerful industry; Congress 
felt-rightly-that cable would grow more quickly and innovate more 
broadly if it was not beholden to the power of broadcasters. So 
Congress cut any dependency that the cable industry might have, by 
assuring it could get access to content without yielding control.
The same solution-compensation without control-is available today. 
But instead, copyright interests are in effect getting more control 
over copyright in cyberspace than they had in real space, even though 
the need for more control is less clear. We are locking down the 
content layer, and handing over the keys to Hollywood.
Intellectual property is both an input and an output in the creative 
process; increasing the "costs" of intellectual property increases 
both the cost of production and the incentives to produce. Which side 
outweighs the other can't be known a priori. "An expansion of 
copyright protection," Judge Posner argues, "mightŠreduce the output 
of literatureŠby increasing the royalty expense of writers." Thus the 
idea mix cannot be found simply by increasing the power of copyright 
holders to control.
Other conservatives are a bit more colorful about the point. 
Consider, for example, Judge Alex Kozinski, one of the brightest 
stars of the Ninth Circuit Court of Appeals-the "Hollywood Circuit." 
When his fellow justices upheld game-show hostess Vanna White's right 
to control the use of her symbolic image, Kozinski sharply dissented. 
As he wrote:
Something very dangerous is going on here. Private property, 
including intellectual property, is essential to our way of life. It 
provides an incentive for investment and innovation; it stimulates 
the flourishing of our culture; it protects the moral entitlements of 
people to the fruits of their labors. But reducing too much to 
private property can be bad medicine.
Why? For the same reasons we've been tracking.
Private landŠis far more useful if separated from other private land 
by public streets, roads and highways. Public parks, utility 
rights-of-way and sewers reduce the amount of land in private hands, 
but vastly enhance the value of the property that remains.
The state must therefore find a balance, and this balance will be 
struck between overly strong and overly weak protection.
Overprotecting intellectual property is as harmful as underprotecting 
it. Creativity is impossible without a rich public domain.
But is that unfair? Is it unfair that someone gets to profit off 
someone else's ideas? No, says Kozinski:
Intellectual property law assures authors the right to their original 
expression, but encourages others to build freely on the ideas that 
underlie it. This result is neither unfair nor unfortunate: It is the 
means by which intellectual property law advances the progress of 
science and art. We give authors certain exclusive rights, but in 
exchange we get a richer public domain.
This balance reflects something important about this kind of 
creativity: that it is always building on something else.
Nothing today, likely nothing since we tamed fire, is genuinely new: 
Culture, like science and technology, grows by accretion, each new 
creator building on the works of those who came before. 
Overprotection stifles the very creative forces it's supposed to 
nurture.
This balance is necessary, Kozinski insists, "to maintain a free 
environment in which creative genius can flourish." Not because 
"flourish[ing]" innovation is the darling of the Left; but because 
innovation and creativity was the ideal of our founding, 
Enlightenment Republic.
THE DIGITAL DILEMMA
In proliferating forms of signatures, searches, sorts and 
surveillance, digital technology, tied to law, now promises almost 
perfect control over content and its distribution. And it is this 
perfect control that threatens to undermine the potential for 
innovation that the Internet promises.
To reestablish a balance between control and creativity, our aim 
should be to give artists enough incentive to produce, while leaving 
free as much as we can for others to build upon and create.
We live in a world with "free" content, and this freedom is not an 
imperfection. We listen to the radio without paying for the songs we 
hear; we hear friends humming tunes that they have not licensed. We 
refer to plots in movies to tell jokes without the permission of the 
director. We read books to our children borrowed from a library 
without any payment for performance rights to the original copyright 
holder. The fact that content at any particular time is free tells us 
nothing about whether using that content is "theft." Similarly, an 
argument for increasing control by content owners needs more than 
"they didn't pay for this use" to back up the argument.
Creation is always the building upon something else. There is no art 
that doesn't reuse. And there will be less art if every re-use is 
taxed by the earlier appropriator. Monopoly controls have been the 
exception in free society; they have been the rule in closed 
societies. Before a monopoly is permitted, there should be reason to 
believe it will do some good-for society, and not just for monopoly 
holders.
With these ideals in mind, here are some first steps to freeing culture:
BLACK HOLE OF COPYRIGHT
Authors and creators deserve to receive the benefits of their 
creation. But when those benefits stop, what they create should fall 
into the public domain. It does not do so now. Every creative act 
reduced to a tangible medium is protected for upward of 150 years, 
whether or not the protection benefits the author. This work thus 
falls into a copyright black hole, unfree for over a century.
The solution to this black hole of copyright is to force those who 
benefit from copyright to take steps to protect their state-backed 
benefit. And in the age of the Internet, those steps could be 
extremely simple.
Work that an author "publishes" should be protected for a term of 
five years once registered, and that registration can be renewed 
fifteen times. If the registration is not renewed, then the work 
falls into the public domain.
Registration need not be difficult. The U.S. Copyright Office could 
run a simple Web site where authors register their work. That Web 
site could be funded by charges for copyright renewals. When an 
author wants to renew the copyright, the system could charge the 
author a renewal fee. That fee might increase over time or depend 
upon the nature of the work.
  "Unpublished works" would be different. If I write an e-mail and 
send it to a group of my friends, that creativity should be treated 
differently from the creativity of a published book or recorded song. 
The e-mail should be protected for privacy reasons, the song and book 
protected as a quid pro quo for a government-backed monopoly. Thus, 
for private, unpublished correspondence, I think the current 
protection is perfectly sensible: the life of the author plus seventy 
years, automatically created, with no registration or renewal 
requirements.
One of the strongest reasons that the copyright industry has raised 
for the elimination of this renewal requirement is the injustice that 
comes from a family's or author's losing copyright protection merely 
because of a technicality. If "technicality" means something like the 
registration was lost in the mail or was delivered two hours late, 
then the complaint is a good one. There is no reason to punish 
authors for slips. But the remedy for an overly strict system is a 
more relaxed system, not no system at all. If a registration is lost, 
or a deadline missed by a short period of time, the U.S. Copyright 
Office should have the power to forgive.
A change in the copyright term would have no effect on the incentives 
for authors to produce work today. There is no author who decides 
whether or not to write a book depending upon whether he or his 
estate will receive money three-quarters of a century from now. The 
same with a film producer: Hollywood studios forecast revenues a few 
years into the future, not ninety-five. The effect on expected income 
from this change would therefore be tiny.
But the benefit for creativity from more works falling into the 
commons would be large. If a copyright isn't worth it to an author to 
renew a copyright for a modest fee, then it isn't worth it to society 
to support-through an array of criminal and civil statutes-the 
monopoly protected. But the same work that the original author might 
not value could well be used by other creators in society.
Software is a special case. The current protection for software is 
the life of an author plus 70 years or, if work-for-hire, 95 years. 
This is a parody of the Constitution's requirement that copyright be 
for "limited times." When Apple's Macintosh operating system falls 
into the public domain, there will be no machine that could possibly 
run it. The term of copyright for software is effectively unlimited.
Worse, the copyright system protects software without getting any new 
knowledge in return. When the system protects Hemingway, we at least 
get to see how Hemingway writes. We get to learn about his style and 
the tricks he uses to make his work succeed. We can see this because 
it is the nature of creative writing that the writing is public. 
There is no such thing as language that doesn't simultaneously 
transmit its words.
The reason copyright law doesn't include source code is that it is 
believed that that would make the software unprotectable. The open 
code movement might throw that view into doubt, but even if one 
believes it, the remedy-no source code-is worse than the harm. There 
are plenty of ways for software to be protected without the 
protection of law. Copy protection systems, for example, give the 
copyright holder plenty of control over how and when the software is 
copied.
If society is to give software producers more protection than they 
otherwise would take, then we should get something in return. And one 
thing we could get would be access to the source code after the 
copyright expires. Thus, I would protect software for a term of five 
years, renewable once. But that protection would be granted only if 
the author submitted a copy of the source code to be held in escrow 
while the work was protected. Once the copyright expired, that 
escrowed copy would be publicly available from the Copyright Office 
server.
PROTECTING MUSIC
The Net has created a world where content is free. Napster is the 
most salient example of this world, but it is not the only one. At 
any time a user can select the channel of music he or she wants. A 
song from your childhood? Search on the lyrics and find a recording. 
Within seconds you can hear any music you want.
This freedom the recording industry calls theft. But they don't call 
it theft when I hear an old favorite of mine on the radio. They don't 
call it theft when they are recording takeoffs of prior recorded 
music. And they don't call it theft when they make a new version of 
"Jingle Bells." They don't, in other words, call it theft when they 
are using music for free that has been defined by the copyright 
system to be fair and appropriate use.
Artists should be paid, but it doesn't follow that selling music like 
chewing gum is the only possible way. Congress has often had to 
balance the rights of free access against the rights of control. When 
the courts said piano rolls were not "copies" of sheet music, 
Congress balanced the rights of composers against the rights to 
mechanically reproduce what was composed. It balanced these rights 
through a compulsory license that enabled payment to artists while 
assuring free access to the work produced. A similar solution was 
reached for cable TV. Congress protected rights holders, but not 
through a property right.
The same solution is possible in the context of music on the Net. But 
here, rather than balance, the rhetoric is about "theft" and "crime." 
Congress should empower file sharing by recognizing a similar system 
of compulsory licenses. These fees should not be set by an industry 
set on killing this new mode of distribution. They should be set, as 
they have always been set, by a policy maker keen on striking a 
balance. If only such a policy maker were somewhere to be found.
REBUILDING THE COMMONS
Copyright was originally simply a restriction on commercial entities, 
regulating "publishers" and those who "vend" "maps, charts and 
books." Because the law slipped into using the term "copy" in 1909, 
it has now extended its reach to every act of duplication, by 
printing press or computer memory. It now therefore covers actions 
far beyond the "commercial" exploitation of anything.
The Net itself, however, has now erased any effective distinction 
between commercial and noncommercial. Napster no doubt is a 
commercial activity, though the sharing that Napster enables is not. 
This line-drawing problem reinforces my own view that the better 
solution is simply to go back to the Framers' notion of limited times.
If copyright were returned to a meaningfully "limited time," then we 
wouldn't need to worry so much about drawing commercial vs. 
noncommercial distinctions. For five, or maybe 10 years, commercial 
entities would hold these rights exclusively. Beyond that, the music, 
like culture generally, would be freely available.
The urgency in the field of patents is even greater. Here again, 
patents are not per se evil; they are evil only if they do no social 
good. They do no social good if they benefit certain companies at the 
expense of innovation generally. And as many have argued 
convincingly, that's just what many patents today do.
If Congress determines that business method patents are justified, it 
should also consider the proposals of Jeff Bezos and Tim O'Reilly to 
grant patent protection for business methods for only a very short 
period. Bezos proposes five years, but an even shorter period may 
make sense. Network technologies move so quickly that a longer period 
of protection is not really needed; and whatever distortions this 
system might produce, they can be minimized by shortening the period 
of protection.
Congress should also, and most obviously, radically improve funding 
for the Patent Office, and mandate fundamental improvements in its 
functioning.
These changes are just beginnings, but they would be significant 
beginnings if done. They would together go a great distance in 
assuring that the space for innovation remains open and that the 
resources for innovation remain free. They would commit us to an 
environment that would preserve the innovation we have seen and help 
fulfill the liberating promise of the Net.
Lawrence Lessig is professor of law at Stanford Law School and author 
of The Future of Ideas, from which this is excerpted. Reprinted with 
permission of Random House. January / February 2002 * The American 
Spectator