Supreme Court Copyright Ruling Live Online

With Jonathan Zittrain
Harvard Law School

Thursday, Jan. 16, 2003, 10 a.m. ET

The Supreme Court ruled to lengthen copyrights for an additional 20 years. The period covering individual copyrights would be extended to 70 years after the death of the creator and corporate-owned copyrights would be extended to 95 years. The ruling is a huge victory for Disney and other companies. However, this would unfortunately mean Internet publishers and other online venues would have to pay high royalties.

Professor Jonathan Zittrain, co-director of Berkman Center for Internet & Society at Harvard Law School, will be online at Thursday, Jan. 16 at 10 a.m. ET to discuss how the recent Supreme Court ruling affects content available on the Internet.

Zittrain is a co-founder of the Harvard Law School's Berkman Center for Internet & Society and served as its first executive director from 1997-2000. His research includes digital property, privacy, and speech, and the role played by private "middlepeople" in Internet architecture. He has a strong interest in creative, useful, and unobtrusive ways to deploy technology in the classroom.

Below is the transcript.

Editor's Note: moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Jonathan Zittrain: Hi - Thanks to the people for having me visit this morning. I was co-cousel to the plaintiffs in the case.

Laurel, Md.: It is not a coincidence that this ruling comes 75 years after the invention of sound movies -- which are about the oldest still-profitable copyright properties in existence.

When "Steamboat Willie" and "Snow White and the Seven Dwarves" approach 95 years of age, is another 25 year extension likely? Are films ultimately going to be copyrighted in perpetuity? 

Jonathan Zittrain: One worry, expressed by the plaintiffs and credited by a couple judges along the way (Judge Sentelle at the DC Circuit was most emphatic about it), was that Congress was trying to evade the "limited times" requirement by going for "forever on the installment plan." (The most recent extension was 20 more years, starting in 1999.) Justice Ginsburg, in the majority opinion, explicitly says that the Court sees no evidence of this, which might leave open the door for the Court to revisit the issue 16 years from now, should Congress once again try to extend copyrights.

Marybeth Peters, current Register of Copyrights, seems genuinely convinced that this was a last extension just to harmonize us with Europe (and in turn, Europe with Germany, which was harmonizing to Bavaria). 16 years from now we shall see. Should Congress extend, one might see the Court saying, "Fool us once, shame on you; fool us twice, shame on us..."

Arlington, Va.: It seems very easy to applaud a ruling in favor of Dr. Seuss, but when that same ruling favors Walt Disney Co., well, it makes me ill that I'd find myself supporting Disney. Is such a victory REALLY a windfall for artists and copyright owners who are not gigantic, monolithic corporations?

Jonathan Zittrain: Well, the victory is a windfall for anyone currently holding "subsisting copyrights." Certainly many, many copyrights -- especially the income-producing ones -- are in the hands of publishers that purchased them from the original authors, or corporates that developed the works themselves, as works for hire. The extension is an outright windfall for them in the sense that the works have already been produced, and nothing more is asked in order to glean the benefit.

But if the heirs of a writer had retained the copyright to her longago work, and the work was still profitable, the Act will help them too. Our view is that Congress should use the normal path to give out windfalls -- i.e. tax breaks or outright handouts -- rather than packing the windfall as restrictions of speech on the rest of us, by extending copyright's monopoly.

Mt. Airy, Md.: Did the Court essentially say that the word "limited" in the Constitution means what ever duration the Congress decides? Is the Court saying it isn't qualified to question any time period determined by the Legislative Branch?

Jonathan Zittrain: The Court said that it owes a lot of -- close to unlimited -- deference to Congress in defining how to promote the progress of the arts and sciences, and that "limited" for these purposes could mean pretty much any "fixed" number of years. If Congress were to pass a law saying that the term of copyright was 500 years, I don't see anything in the majority opinion to conclude that wasn't "limited." (The Solicitor General, on questioning at oral argument, said that "limited" imposed some restriction on what Congress could do: Congress couldn't make copyrights last forever, or "functionally" forever, perhaps by a ten million year term.)

Mary Bono, in introducing the act, suggested Congress consider adopting Jack Valenti's proposal that copyright's term be "forever minus one day."

You can see Justice Ginsburg's discussion of the word on p. 8 of the slip opinion.

Washington, D.C.: The Constitution is quite clear that Congress may set the terms of intellectual property, such as its length of protection. Beyond the non-legal "policy arguments" about social harm, etc., what were the Constitutional arguments that the plaintiffs advanced against the law?

Jonathan Zittrain: We had two primary arguments -- first, that the Constitution does impose some limits on Congress's power here, precisely because the Framers worried that copyright's monopoly could become runaway. Art 1, Sec. 8, Cl. 8 says that Congress can "... 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 ..." (science meant literature then, and useful arts meant science, but that's another story...)

Our claim here, among others, was that a time that could be continually extended by Congress was not in any sense "limited." We also thought that "promoting progress" was the best way to understand what "limited" meant -- and that a retroactive extension doesn't promote progress.

Second, we said that such blanket extension of copyright terms implicated the First Amendment, since copyright is built on a foundation of restricting everyone's speech but the copyright holder's for a given protected work. At least, we argued, such extension has to pass a first amendment test -- it might win, but it should have to take it.

The majority disagreed on both fronts, but the dissent got it right, with Justice Stevens gravitating to the first claim (believing that Congress was to grant copyrights as a quid pro quo for creating, rather than as a windfall), and Justice Breyer framing a first amendment argument.

Arlington, Va.: How does extension of copyright violate free speech? You are still entitled to write your own version of Gone With The Wind (and people have). You are restricted in using other people's speech freely.

Jonathan Zittrain: Copyright itself is clearly a restriction on speech -- maybe a justified one, but surely a restriction. When the first Congress met in 1789+, the scope of copyright was quite limited: books, maps, and charts. Now copyright covers musical compositions, derivative works -- things built on something else, even if not a copy -- and even comic book characters.

What this means is that, for example, to sing happy birthday to someone in a public place is a violation of copyright. To perform a play in a high school and to omit a scene without permission from the copyright holder is a violation. (Most plays are quite clear that one, even if having paid for permission to perform them, can't change a word of them.) "The Wind Done Gone" was initially blocked, because it was thought to be an undue derivative work of "Gone With the Wind."

When at worst one can't do any of these things without someone's permission, or at best can only do so by becoming a lawbreaker -- or hiring a bunch of lawyers to try to argue the minutiae of a fair use defense -- it can become clearer not just how copyright impacts speech, but why then a blanket retroactive copyright extension restricts speech with no particular public benefit. (Maybe it's nice to provide for authors' heirs, but we can do that by sending them checks from the Treasury.)

Dulles, Va.: Do the Mary Bonos of the world really believe that Julius Caeser's direct descendants should be earning royalties on his writings? It seems like the power elite are trying to create the new economy version of feudal holdings -- property that will transmit for generations and generations...

Jonathan Zittrain: I'm genuinely not sure how Mary Bono would respond to the question (she did say Sonny wanted copyright to last forever), but I think many of the publishers think that "intellectual property" ought to be like any other kind of property -- just as one can pass down an heirloom or land to descendants. The Framers definitely didn't see it that way; Jefferson in particular was aware that knowledge was something that could be transmitted to a new person without depriving the first person of it (compare with Grandma's diamond ring...), and was very skeptical of copyright.

But that's one of the cultural conflicts underlying the debate: is intellectual property something to be "owned" forever, or something that is artifically created by the government for a limited end -- to convince an author to create -- after which one's intellectual children grow up and fly the coop. (Especially important since so many works are based on old ones -- West Side Story is a retread of Romeo and Juliet, and Shakespeare's heirs couldn't do anything to stop it, or extract royalties.)

Silver Spring, Md.: How are copyright laws applied internationally? Couldn't Eldred set up his archive in a country that doesn't recognize the longer U.S. copyright terms?

Jonathan Zittrain: International treaties are notoriously unsuccessful, but copyright has been one of the shining stars -- WIPO, TRIPS, and other arrangements are seeing to it that largely one view of copyright prevails over at least the West. (And often what expansive terms can't be obtained through Congress directly is gained by getting the U.S. to accede to a treaty requiring it, and Congress then simply ratifying the treaty.)

Were Eric to set up a server elsewhere but choose to remain in New Hampshire, there'd be little to stop him from being exposed to a lawsuit (or worse), at least if Americans were able to get to that remote site and download the material in violation of U.S. law. (You might search online for the "ICraveTV" case for an example of this phenomenon.)

There is one difference between European and U.S. treatment of the rights in certain musical works -- so those in Europe will soon be able to reproduce some jazz classics that are still restricted here. It will be interesting to see what happens as that difference unfolds, and we remain limited while the Europeans are not.

Pacific Grove, Calif.: So when will it stop? When will Congress, acting on behalf of its citizens and not "Big Business" quit extending copyright ad infinum, so we may finally realize what the founding fathers wanted? Clearly we went through some early pains with Patents and now have a reasonable system that rewards inventors, but also expire soon enough to benefit society, and allow more inventors to build new and better things from these inventions. To deny this was the intent of the founding fathers with reguard to copyright as well is absurd. Disney wouldn't have been able to create some his best work if it weren't for the public domain, yet his company won't let anyone else play, with the full blessing of our government. How is this lawful, constitutional or fair?

Jonathan Zittrain: It's not fun to lose a case that seems so obvious. But it's apparently not obvious to seven justices -- give of whom didn't write any opinion in the matter. Now, with the Court having spoken, the dispute will have to focus within the public and political arenas. The case at least has caught the public eye, and my guess is that when Congress takes up yet another copyright-expanding piece of legislation (including, perhaps, a further term extension), it won't be seen as obscure and unimportant, and unlike the Bono act, won't sail through Congress without a single dissenting vote in either chamber. That's a start, I guess.

Washington, D.C.: Why doesn't the recording industry lower the price of CDs and make individual songs available for purchase? By gouging customers with $145 box sets, they make copyright outlaws from people who just like the internet for all the great things it offers.

Even Bill Gates knows you can't charge too much or people will pirate your product. He also knows that the best type of copyright enforcement isn't a law, it is the monopoly aspects of the product. So with software, you get support, with CDs, you get arranged music, and with a book, you get a printed product that's much better than photocopying.

Jonathan Zittrain: I think the music industry, like most monopolists, has structural incentives to be lazy -- that's what a lack of competition will do for you. (Think stadium refreshment stands.) The Internet truly caught the industry by surprise, and the publishers' first choice was to pretend it didn't exist, and second choice was to shut it down. The third choice is to figure out how to live with it, and maybe even how to exploit it better. I believe that the publishers have certainly awakened to the Internet's threat to their way of doing business, and possibly awakened to the Internet's opportunities. Services like musicnet and are baby steps towards a pay-per-listen world, and with enough tinkering I think the industry could actually compel most consumers to pay for their music rather than laboriously scouring peer-to-peer networks to get it for free. (And anyone going to great effort to find it for free is probably enough of a cheapskate not to buy it if left with no alternative -- which is why "$ lost to piracy" figures can be a bit misleading.)

Anaheim, Calif.: I don't understand this argument. Congress extends the length of time that artists retain ownership over their works, and you complain that your rights are being trampled. Don't the rights of the artist to protect his or her own work, supercede the rights of the public to use that work for free?

Jonathan Zittrain: That's the question all right. The rights of the artist are what Congress says they are -- and they are quite technical, elaborated rights, with exceptions and counter-exceptions that can make one's head spin.

Try searching for the "fairness in music licensing act," which was the second half of the Bono Act, and you'll see what I mean. Before reading it, ask yourself whether it's OK for a restaurant to play the radio while customers eat food, without paying money to the people who wrote the songs they're playing. (To be sure, the radio station already pays.) Is there an intuitive answer to that? The FMLA gives a quite convoluted one, in terms of how many speakers are attached to the stereo and how many square feet the restaurant has -- and ASCAP, at least, hated the result.

"Rights" in intellectual property are tought things to nail down intuitively, and I think there are limits to what publishers ought to be able to demand from Congress, especially when the works in question aren't mere commodities like pig iron or rolled steel, they are expressions of speech.

McLean, Va.: I was able to buy a book of every single published work of Edgar Allan Poe for $8 at Borders. I assume that this is because the work is in the public domain and there's plenty of competition out there to sell works by classic authors. Not bad, I like it. But if Eldred wants to publish works by Sherwood Anderson, who presumably had better posthumous fortunes than Poe, shouldn't he realize that the darn things are simply copyrighted and deal with it? I don't like the idea that someone thinks they can make money with material they THINK should be in the public domain, and then argue that it's not about their wallet, it's about freedom. Come on.

Jonathan Zittrain: Yes, Chief Justice Rehnquist seemed to be thinking along these lines at oral argument. He basically asked us, "wait, aren't you just wanting to rip off other people's works verbatim?"

This isn't really about money in its essence. Eric Eldred doesn't just repost public domain works, he transforms them, cross-links them, allows inline commentary on them. All these things aren't possible with copyrighted works unless one can (1) find the copyright holder; (2) get permission; (2a) which usually means paying something, which all means that Eric will find something better to do with his time than maintain a permissions spreadsheet and go hat in hand asking the heirs of long-dead authors (or, more frequently, corporate legal deparments), for freedom to do something.

Washington, D.C.: Is this it? Have we lost the public domain battle? Is there any way now to turn around the trend of lifetime corporate ownership of works that should be available to the public?

Jonathan Zittrain: We are at a critical juncture in this debate. Telecommunications companies, in a fit of expensive, irrational faith, have been wiring up the country. Now that we have unprecedented opportunities to connect to the Internet, what will it be used for? Who will control it?

One prevailing vision is to see it as a sophisticated television set -- lots of programming, and every time you click a link you're changing the channel.

It has much more potential, much more ability to allow people to express themselves, create new works and ideas, and interact in new ways. Efforts like "Creative Commons" (worth a google search) are afoot to try to anchor the Internet with a thriving public domain, seeing the ability to copy something freely and quickly and perfectly as a feature rather than as a bug.

But yesterday's ruling is certainly a blow to those efforts.

Mt. Rainier, Md.: If I'm not mistaken, copyright laws also cover pharmaceutical drugs - which means that these also will be costing Americans more because generics cannot be produced until the copyright is finished? And of course drugs are by no means as 'optional' as music or movies.

Jonathan Zittrain: Well, close -- drugs are covered by patents. Certainly there the idea is to see to it that there's reason to invest billions in making a drug; give a monopoly in its production to the creator for some years, and the investment will be worth it. But a perpetual patent would be a disaster: at the time of the drug's making, the prospect of profits 100 years hence is irrelevant (see our economists' brief -- signed by five Nobel Prize winners! -- in the case for details), and the idea that it could be against the law to help cure someone when it doesn't cost anything to do so, is crazy.

Washington, D.C.: Has anyone offered a rational justification for how grandfathering existing works into the recent copyright extension serves to promote "progress" or is justified in anyway by the Constitution? Smart people (i.e. the Court) seem to think extending the protections to existing works is ok but I have yet to see any plausible Contitutional reasoning for it.

Jonathan Zittrain: The reasoning most credited by the majority in yesterday's opinion seems to be "fairness." If I write a work today and get 95 years' protection, if Congress passes an extension to 105 years tomorrow I'll feel left out. Of course, this is hogwash: NO ONE CARES about 95 vs. 105 (at least not rationally; the majority seemed to think that "calculators" have nothing to do with artists' incentives, and maybe Bob Dylan meant it when he implied he wouldn't bother getting out of bed in the morning to write songs if he were "only" to have 75 years' protection...). Worse, the retroactive extensions are what's driving the continuing pressure for expansion. Instead of being tacked on to a prospective extension for the sake of fairness, the retroactive extension is the very goal -- and it's the prospective one that's lumped in.

But the majority didn't buy it.

Frederick, Md.: Is Rep. Boucher's "fair use" bill a good way to counteract the Bono Act?

Jonathan Zittrain: Sure, any port in a storm. These are small steps -- Boucher's bill is basically an attempt to require publishers to disclose when they plan on introducing intentional bugs into CDs to prevent copying -- but it's a start. So, too, is Cong. Lofgren's bill allowing people to circumvent digital locks when they want to make "fair use" of a work.

Washington, D.C.: Would you please give a few specific examples of how this new ruling would have a great impact on internet publishing, educational initiatives, or artistic creativity?

Jonathan Zittrain: In an era when CBS can sue FOX because "Boot Camp" is thought to infringe the copyright of "Survivor," the prospect of effectively perpetual copyright extensions means --

-- attempts to combine old works in new ways won't be typically worth the trouble and expense
-- libraries may be given works that they can't lend out unless they charge per patron, and those digital works may record just who reads them
-- people will start to think that "intellectual property" is just like regular property, and it will seem normal that one isn't allowed to sing "Happy Birthday" without permission, or recite a few lines of a play, or play improvised jazz favorites at a club
-- to publish anything one will have to have a lawyer, who will write an expensive memo telling you that she can't promise you won't be sued, but with luck you won't be and if you are her firm will happily represent you
-- there will be no example of a world in which ideas can truly spring free after their dues have been paid, except the world that used to be -- the one in which Disney could adapt Grimms' fairy tales even if the Grimms didn't like it, or effortlessly weave classical music into Fantasia.

Indeed, when such rights are retained by a handful of institutions, those institions will be able to adapt their own stuff however they like, and tell other would-be creators to forget it.

Harrisburg, Pa.: I am interested in becoming an attorney working in copyright law. What is the market in this field?

Jonathan Zittrain: Congratulations -- it's a growth industry, with enough Byzantine rules to ensure that people can't tread within it without the help of a lawyer. If you want to be a copyright litigator, be prepared to write lots of "cease and desist" letters. You can see samples at (May I recommend Harvard Law?)

Washington, D.C.: Today's N.Y. Times editorialized: "In effect, the Supreme Court's decision makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment."

Do you think this is a very hard case to make to the public? Only by making this a political issue will the Bono Act be repealed.

Jonathan Zittrain: Yes, I think it's a hard case to make to the public. As some of the questions here today show, people are often genuinely baffled about what's at stake. I think this is largely because the ruling means opportunities lost, rather than things we'd come to appreciate being yanked out of our hands. Thanks to previous term extensions, few of us in our lifetimes have seen anything new enter the public domain. We sadly think that what we have now is what's "normal," and a change is "radical." But the debate is growing.

Europe: Will authors who have sold their works to publishers be able to claim a share in the retrospective windful granted by Congress?

Jonathan Zittrain: Nope, not unless their contracts provide for it, which they typically don't. It's like selling your land to someone, and the day afterwards, oil is discovered on it. (D'Oh!)

Washington, D.C.: Where's the middle ground on this? Are there any lawmakers proposing a copyright compromise -- a "real" compromise, that is.

Jonathan Zittrain: If only. However, we are starting to see a few steps towards dissenting voices, a healthy dissent that can start towards a process of compromise. For too long, I think, the debate has been between absolutists, or hasn't been a debate at all. (See the previous answer about Reps. Boucher and Lofgren for some specifics on what's changing.)

Georgetown, Washington, D.C.: Wouldn't many of the problems created by long copyright term be minimized by limiting the copyright to copies of the protected work. In other words, shorten the time when the author gets the exclusive right to produce derivative works. It seems to me that this would greatly reduce the bad effects of long copyrights.

Jonathan Zittrain: Sure -- and some academics have proposed this, most recently Joe Liu at BC Law School. Unfortunately it's hard for someone with a vested right to be persuaded to loosen it a little, even if the right is relatively new. The general idea for publishers has been, "anything you might possibly do that could require my permission, and for which I thus might charge you $, is something that if taken from me is taking $ out of my pocket and therefore pickpocketing me."

Mt. Rainier, Md.: Anaheim's argument about the artist's right to his/her work loses ground because of the extension. What artist is creating copywritable work at the age of 5 to be receiving royalties at the age of 100? This is to benefit corporations and heirs, not the artist.

Jonathan Zittrain: We thought at an early stage in the case to make some use of the "authors and inventors" language in the copyright clause (reproduced above) to say that the Act isn't benefitting authors and inventors, but as a matter of doctrine it didn't go very far. As a policy matter, what you say seems true.

Falls Church, Va.: I understand why yesterday's ruling was big news for Americans in general. But why was it such a big deal for techies? Seems every technology news site and chat room was focused on this yesterday and today.

Jonathan Zittrain: Perhaps the techies, who most see their work impacted by the (perhaps justified) paranoia of the publishers, see copyright extension as just part of a package of hydraulically expanding copyright. So even if not directly impacted, they tend to be interested in it as "look what they're up to now."

Woodbridge, Va.: The discussion around the CTEA at the time was all empty rhetoric and emotion; there is still no evidence that the Mickey Mouse extension will have the benefits alleged by its supporters. The extension is largely just corporate welfare for Disney et al. Are there any honest brokers in Congress who will call for its repeal, or is the public interest entirely doomed?

Jonathan Zittrain: I think repeal is politically out of the question, and if it passed would be subject to a rigorous Constitutional challenge by exactly the people who think the Constitution has nothing to say about preceding extensions! ("It's a Taking," they'd say.)

Baltimore, Md.: Taken to a logical extreme, "perpetual" copyrights would mean, for example, that we would be forced to hunt down the heirs of Shakespeare and Chaucer and pay their heirs for reuse of their works. Has anyone considered the ramifications of, say, Disney and their ilk having to retroactively pay for their adaptations of Hans Christian Andersen, the Brothers Grimm, etc? Heck, wouldn't the creators of "West Side Story" be restricted from "re-telling" "Romeo & Juliet"?

Jonathan Zittrain: Justice Breyer alluded to this at oral argument -- and came out on our side. He was wondering whether Congress could take public domain works (of the sort you describe) and "re"-copyright them, to provide incentives for their distibution, etc. A case is now pending in Colorado, Golan v. Ashcroft, asking exactly this question. It seems that Congress, to harmonize with international treaty, took works that were in the public domain and now honors copyright for them -- including Leni Riefenstahl's Nazi paeon film "Triumph of the Will."

The case was on hold pending the outcome of Eldred, and presumably now will start up again. I wouldn't be surprised if it, too, made it to the Supreme Court.

Alexandria, Va.: So Disney could have stood to lose Steamboat Willie. Why not let one of the millions of versions of Mickey fall into the public domain? If I were Preston Padden, I'd be more afraid of losing the Sorcere's Apprentice Mickey. Seems like the Disneys of the world could afford to compromise and let some of their stuff into the PD. It would be good marketing, certainly.

Jonathan Zittrain: Funny, too, that even if we'd won Mickey Mouse would have been protected by trademark forever, or at least until Disney tired of using him. Copyright only covered the particular films -- not the use of the character on a T-shirt, to promote a theme park, etc.

Herndon, Va.: Actually, the entertainment industry may not want to celebrate for too long. If they continue to gouge consumers with excessive copyright terms, consumers will rebel. I can foresee an 'open source' intellectual property movement or, perhaps, an entertainment anarchy, where consumers use the technology tools at hand to create their own entertainment. If history is any lesson, efforts to restrict ideas never work.

Jonathan Zittrain: Yes, it's natural for a monopolist to overreach a bit. I don't blame the publishing industry for pushing for everything they can get, but sometimes it does indeed backfire. Google "girl scouts" with ASCAP to see a tale of ASCAP's abortive attempt (later denied) to charge Girl Scout camps money for singing songs around campfires, which, to be clear, under the copyright law they likely have a right to do.

"They buy paper, twine and glue for their crafts -- they can pay for the music, too," said John Lo Frumento, Ascap's chief operating officer. If offenders keep singing without paying, he says, "we will sue them if necessary."

This PR blunder (it's interesting to read the ASCAP press release renouncing the idea) likely cost ASCAP the royalties from restaurants I mentioned above.

Washington, D.C.: Even if yesterday's decision were reversed, doesn't the DMCA effectively provide for a sort of permanent copyright by limiting what Americans can do with digitally protected works?

Jonathan Zittrain: Certianly the publishers aren't relying on law alone -- they're hoping to lock works up digitally, so they can't be copied by any teenager with a modem. The DMCA is a law that says that, generally, anyone who hacks such a scheme could go to jail or be sued by the rights holder. Yes, people at the time pointed out that such schemes could lock works up forever technically, even if copyright one day expired on them.

Columbia, Md.: So, when you and Larry Lessig talked about this yesterday, what did you say? Is there any new hope? Can this battle be taken back to Congress?

Jonathan Zittrain: Larry is, I think, ready to carry on, both as a political matter, and with organizations like, which are trying to pioneer the use of technology to free work without breaking anyone's laws. One amazing thing about public interest litigation, and litigation generally, is the ability of a few people -- like Larry, and Eric Eldred, and the other amici in the case and their lawyers (see for a list, and their briefs) -- to call Congress to account. Congress did, and won, but it's still a pretty cool system.

Washington, D.C.: Can we expect to see Web sites charging for more content because of this ruling?

Jonathan Zittrain: I'm not sure the ruling will affect that too much, at least in the short term. It does mean that audio and video works -- most, of course, produced after 1923 and therefore caught within this web of continually expanding copyright duraction -- may never spring free, at precisely the time the Web tools would make it so easy for so many to do interesting things with them, whether for fun or profit. Too bad.

Baltimore, Md.: In your reading of the dissents filed by Justices Breyers and Stevens, what did you find most heartening?

Jonathan Zittrain: I suppose that they agreed with us; imagine losing 9-0! Most heartening was that each agreed with different facets of the reasoning. Their opinions were the most "forest" rather than "trees" oriented, something perhaps sniffed at by the majority -- check out the many footnotes in the majority opinion seeking to undermine the doctrinal claims made by the dissent -- but that contribute a lot to the ongoing debate, especially when it returns to the legislative arena. Justices Stevens and Breyer are not anarchists, communists, or nuts, and this helps greatly to mainstream the debate.

Jonathan Zittrain: Thanks much for your questions -- I hope this was helpful, and balanced. You can read more about the case at; more about Lessig at; Eric Eldred's site at the abstruse (best to google "Eldritch Press" and click "I'm feeling lucky...); and more about my work and the Berkman Center at and

Copyright 2003