Commons Law

By Lawrence Lessig [ http://www.intellectualcapital.com/bios/bio977.html ]

June 24, 1999

Eric Eldred is a computer programmer. He is also a publisher. In 1995, he opened his own online shop, posting free html-versions of famous books. By 1998, he had dozens of texts posted -- from a large collection of Nathaniel Hawthorne to works by Robert Louis Stevenson.

Eldred could publish these works because their copyrights had expired, and they had entered the public domain. The Constitution gives Congress the power to grant authors an exclusive right to their work "for Limited Times." After that "limited time" is up, the exclusive right ends. The work then enters the commons, from which anyone can draw to use or adapt or develop the work.

The fight is joined

This design of our framers makes perfect sense. It creates an incentive for authors to produce, but then feeds what they produce back into the public domain. Stories, or images, or music once protected become the inputs for others to produce more stories, or images or music. When Disney produces "Pocahontas," "Fantasia," or "Tarzan," it is producing wonderful new work, but it is drawing upon this public domain.

For 170 years, this system worked just fine. But then copyright holders began to pester Congress for a better deal. In 1962, Congress began to extend the life of existing copyrights, at first for just a couple years, but then in 1976, for 20 years. Last year, it did it again. The Sonny Bono Copyright Term Extension Act extends existing copyrights for another 20 years. The "limited time" the framers had in mind (initially 28 years) can now reach 95 years.

The pattern here is clear. As professor Peter Jaszi puts it, rather than "limited times," Congress has embraced "perpetual copyright on the installment plan." Congress has ignored the Constitution’s design, lulled in part no doubt by the campaign contributions of copyright holders. This was exactly the evil the framers wanted to avoid: state-sponsored monopolies purchased by the powerful.

Eldred wanted to fight, and a few of us at the Berkman Center for Internet and Society, and the law firm of Hale & Dorr, have agreed to help.

But we have decided to litigate this case in a different way. Rather than the secret battles of lawyers going to war, we will argue this case in the open. This is a case about the commons; we will litigate it in the commons. Our arguments and strategy will be developed online, in a space called "openlaw.org." Key briefs will be drafted online, with participants given the opportunity to criticize the briefs and suggest other arguments.

The inspiration for this idea is the Free software and Open Source software movements. Like those efforts, our code will be open. Anyone is free to take our materials and file their own lawsuit, though our hope is that, in the process, they will contribute to helping debug our case.

A test case

Our motivation is also practical. The people who have been fighting this cause the longest, and who have given this issue the greatest thought, are not (all) at Harvard. They are spread across the world. This case is a chance for their ideas to be tested in court. And while we ultimately are the lawyers, and we must decide what arguments get made, we will make that decision based on an ongoing open discussion.

Already this process has produced significant results. We have just completed an outline of our first brief, and this week we will post an alpha draft of the brief. Those who have been watching will see that the argument has evolved. While we have been surprised by the number of people who prefer private e-mails to public postings, the input has pushed us to add an independent argument under the First Amendment, and a stronger argument about the place of "authors" in the constitutional design.

At Openlaw, we are committed to this form of litigation in cases beyond Eldred v. Reno [ http://eldred.ne.mediaone.net/complaint.html ]. Once we hammer out the bugs, the space in principle could be used for any number of challenges. One possibility is to use the forum to help identify prior art in software patent litigation. We also have had inquiries from the civil-rights communities about other constitutional challenges.

Openlaw will not work for every case, however. If surprise is an element of the strategy, or where the case is fact-intensive, then litigating in the open might not make sense. Our case is a challenge to the constitutionality of a statute; there are no complicated facts that participants must know before they can participate. Their ideas will be the contribution. But in cases where knowing a complex record is necessary, it would be harder to use a diverse community of participants to help. The signal-to-noise ratio might be too small.

If openlaw works as we hope, our arguments will be the joint product of a large Internet community that is keen to protect an intellectual commons. It will have benefited from the best of the arguments in this community, and from the mistakes of ours that this community can correct. And if these benefits work here, then our commitment is to make this platform for litigation freely available to others as well. Our product will be produced by the commons, and we will return the product to the commons -- not 95 years from now, but soon.

Lawrence Lessig [ http://cyber.law.harvard.edu/lessig.html ] is Jack N. and Lillian R. Berkman professor for entrepreneurial legal studies at Harvard Law School. His e-mail address is lessig@pobox.com.