Future of Ideas


January 26, 2002


BROOKE GLADSTONE: If Plutarch enjoyed the same legal protection as Mickey Mouse does today, Shakespeare would have been out of business. Big companies have lobbied Congress and successfully passed the Sonny Bono Copyright Protection Act and now Mickey Mouse is the most thoroughly protected animal since the spotted owl.

BOB GARFIELD:More than ever big companies clamp down on ideas they say they own, and the laws as currently written back them up. But copyright law not only stifles creativity, says Stanford law professor Lawrence Lessig, it also stifles the development of new communications technology. That's the idea behind his new book, The Future of Ideas. Lawrence Lessig, welcome to On the Media.

LAWRENCE LESSIG: Thanks for having me.

BOB GARFIELD: Let me begin with an argumentative question. I can imagine a scenario where some regular guy wants to open a store called Mickey Mouse Liquors and put out a sign in front showing Mickey and Donald Duck, you know, doing shots or something. Now Mickey Mouse is an ongoing corporate symbol. He is still a revenue-generator for Walt Disney company. Why, just because he was invented 75 years ago should Walt Disney be forced to, to give him up?

LAWRENCE LESSIG: Well let's distinguish between two ways in which Walt Disney gets legal protection for Mickey Mouse. One is trademark law, and the other is copyright law. And the objective of trademark law is to make sure that the consumer doesn't confuse your liquor store with the Walt Disney Corporation. But copyrights, as the framers of our Constitution envisioned them, would be for limited times. Now why is it Mickey Mouse or Donald Duck should fall under the public domain or more precisely why should Walt Disney Corporation lose this creative work which they have so powerfully put into our culture? Well for the same reason that the Hunchback of Notre Dame fell into the public domain and Walt Disney could then use that to produce its own work called The Hunchback of Notre Dame despite the complaints of the Victor Hugo Estate; the same reason that Cinderella or the works that underlie the Grimm Fairy Tales fall under the public domain therefore allowing the Walt Disney Corporation to use them. This is our system. [BOTH SPEAK AT ONCE]

BOB GARFIELD:That's -- okay, I get - point taken - that is a very [LAUGHS] good answer. Now-- when you think of protection in cyberspace of intellectual property, you tend to think of Napster. Is, is Napster the poster child for this question?

LAWRENCE LESSIG: Napster is really just an example of a much more general question which is: how much control should the existing recording industry have over the future of innovation in cyberspace? Because what we've seen over the last couple of years is that essentially every technology that the recording industry doesn't like, they've sued and increasingly successfully stopped the deployment of that technology in cyberspace. And it's that power to control the future that I think is the real issue that the Napster case raises; not the question whether people have the right to steal copyrighted materials or not, because obviously this is the limitation of a lawyer. I can't help but agree that of course people don't have the right to steal.

BOB GARFIELD:Well give me an example historically of another circumstance where people who wanted to license intellectual property were given the absolute right for a nominal fee to license it -- not to steal it but to license it.

LAWRENCE LESSIG: I think of the first and most important Napster as the cable television industry. All right, the cable television industry was born with technologists putting antenna up on top of mountains, stealing broadcasters content; selling that content to their customers. And for 20 years broadcasters tried to get the Supreme Court to declare that "theft" -- and I'm using their words -- illegal -- tried to get it declared a violation of copyright law. And the cable television industry -- they said we're afraid that if the broadcasters have an absolute right to determine whether they sell the content to us or not, the broadcasters will try to use their power over broadcasting to take control over the cable television industry. But the Supreme Court twice held that the copyright law didn't apply to this technology and therefore the cable television industry got to take off and develop in some sense using other people's content without paying for it. So-- I'm concerned where the law is being used to protect existing interests or existing industries against new competition, and that's how I think copyright law is being used today, because I and of course many people have looked at the Internet and, and see it as a great opportunity for artists and consumers to have much greater access to content at a much more affordable rate.

BOB GARFIELD:Well considering that those copyright monopolists have bottomless pockets from which to donate to politicians, and considering that there's not exactly a consumer uprising on this issue, is there any hope f-- that your vision of the future will ever materialize?

LAWRENCE LESSIG: Well my brand is pessimism, and s-- I'm supposed to stay on brand, so-- [LAUGHTER] the first answer is no. We as a culture have lost the sense that our framers had of how different copyright or intellectual property is from ordinary property rights. Most people think of copyright just like any property and just like you have no fair use right to my car, why should I have a fair use right to Disney's Mickey Mouse? And that makes it very hard for people to recognize how important it is to creativity that ideas and creativity be allowed to flow in the public domain. Now there have been incidents that have reminded people about how silly this system is. I argued the case challenging the Copyright Protection Act after the argument in the D.C. Circuit. A woman came up to our team and described her situation which was that she had written a--play based on a very obscure author's work that was supposed to fall into the public domain in 1998, but because of the Sonny Bono copyright protection act or as we call it, the Mickey Mouse protection act, she can't perform it for another 20 years, but individual authors or individual copyright holders aren't the problem here. The problem here is large holders of copyright who've aggregated large control over the industry, so in the recording industry 5 companies control more than 80 percent of the distribution of music in the world. These large companies would like to pervert the evolution of the network in a way that protects their power, and I just don't think the law should be used to that end.

BOB GARFIELD: Lawrence Lessig, thank you very much.

LAWRENCE LESSIG: Thank you for having me.

BOB GARFIELD: Lawrence Lessig is a professor of law at Stanford University and author of The Future of Ideas.