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Balancing Acts
In the end, all is a search for balance. Here are the key trade-offs:

Copyright duration. The ownership of land is normally indefinite. But the U.S. Constitution allows for Congress to issue copyrights for limited periods only. Why the difference? Because there is no sensible way to return privately owned land to the commons. Forcing the current owner out after 50 years would create a free-for-all, because only one owner can possess a plot of land. But writings (including software) are different, because many people can use them without depriving others of their use. The only question is how long to wait before returning them to the public domain. Lessig and I agree that the current rules are too generous. In the 19th century and for most of the 20th, U.S. copyrights initially expired after 28 years, a rational length of time. But the 1976 Copyright Act lengthened that period to 75 years, and the Sonny Bono Copyright Term Extension Act (CTEA) of 1998 gave producers another windfall, adding 20 more years – even for works whose 75-year copyrights were about to expire. Disney and the Gershwin estate didn’t do anything to deserve such extensions on their expiring copyrights. (Remember, someone with one year left to run on a copyright gets a lot more out of a 20-year extension than a new author whose 20 extra years start in 2080.)

Scope of protection: derivative works and DRM. Opposition to the CTEA shouldn’t translate, however, into reluctance to extend copyright protection to derivative works like the French translation of my latest novel. The extra income stream is an added incentive for the original author, while rivals must compete by producing novel works rather than derivative ones.

We should also welcome the expanded options that digital rights management (DRM) provides for marketing new works. Forcing people to pay for films and music on a per-use basis is a sensible response to the technologies that allow protected works to be copied infinitely at close to zero cost. With old-fashioned books, a work’s value to a second reader is built into the cover price. But there’s no way to price an initial sale to cover anywhere from one to a million performances of a song. Charging by use allows for price discrimination between heavy and light users, which neatly brings into the marketplace those low-intensity users who are unwilling to pay the flat fee for records or tapes. DRM is no more threatening to free culture than metered phone calls.

Nor will DRM impede the “remixing” of bits and pieces of shared experience into new creative works. I can be inspired by Hemingway or Bellow to write my own masterpiece, so long as it is not a derivative work. Indeed, often the copyright law does not give sufficient protection to original creators. The old rules work well; the only problem is that an artist or author who wants to assemble snippets from previous works into something new can find it prohibitively expensive to acquire the rights to those snippets. What’s needed is some fine-tuning around the edges.

Fair use. Section 107 of Title 17 of the U.S. Code contains a turgid account of the factors that determine whether any particular use of a copyrighted work is protected as a fair use – the limited use of the work of someone else in your own work. Fair use lets a critic quote from an author she hopes to savage: her article will be suspect if it does not show the basis for her judgment. Asking the author for permission won’t work because the author will deny access to his enemies and allow it to his friends. So weakening the property right makes sense as a way to bolster the market. Similar arguments can be made for allowing use of copyrighted works in other cases, such as news reporting, teaching, and research, as Section 107 now dutifully provides.

The harder problems are those like the great 1984 case of Sony v. Universal Studios, in which the U.S. Supreme Court held that fair use allowed people to use the Sony Betamax VCR to record television shows. The Court ruled that Sony did not illegally aid copyright infringement because its equipment had “substantial noninfringing uses”; in fact, the justices reasoned that VCRs expanded the numbers of TV viewers. But the choice involved hard trade-offs. To hold Sony liable might have retarded the use of valuable new technology, but letting it off ran the risk of undermining the TV and movie industry’s ability to protect copyrights. The Supreme Court’s decision was proved right when VCRs opened up a new income stream for copyright holders.

These same trade-offs are at issue in this year’s cause celebre, a Supreme Court case pitting MGM against the operators of Grokster, a peer-to-peer file-sharing program that some consumers use to download pirated copies of songs or movies. The friend-of-the-court brief Lessig submitted in support of Grokster shows the same habits of mind that dominate his piece for Technology Review. The late Fred Rogers of Mr. Rogers’ Neighborhood, who testified in Sony v. Universal, wanted his works to be freely available for noncommercial use: Lessig applauds this virtuous impulse and worries that suits against Grokster will frustrate the wishes of people like Rogers. So he wants Grokster to be free of liability even if individual file sharers should be punished. Fair enough; but once again he pleads his case through anecdote rather than solid legal reasoning.

My fundamental objection to Lessig’s essay is that he argues by appealing to attractive examples of free spirits and not from legal principle, as a good jurist should. My son Benjamin is a young, gifted filmmaker in New York who depends on copyright protection for his livelihood. I would never argue, however, that we should have strong copyright protection just to help Benjamin’s career. But Lessig’s arguments from anecdote do the equivalent for his own cause. In spite of his fervor, he has not explained why the standard view, which offers sensible if limited protection of intellectual-property rights, is wrong. We have yet to learn why free culture depends on free software. For me, at least, the opposite is closer to the truth: free society also rests on the strong protection of proprietary software.

Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago. He was the editor of the Journal of Legal Studies from 1981 to 1991 and of the Journal of Law and Economics from 1991 to 2001. His books include Skepticism and Freedom: A Modern Case for Classical Liberalism. Epstein taught a seminar on the intellectual origins of private property taken by none other than Lawrence Lessig.

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