The Cultural Anarchist vs. the Hollywood Police State
A Stanford Professor Is One Supreme Court Decision Away From Ending Copyrights on Thousands of Movies, Books and Songs. If He Wins, the Entertainment Industry Will Have to Find Other Ways to Make Money
David Streitfeld is a Times staff writer based in the Bay Area.

September 22 2002

Larry Lessig is a 41-year-old Stanford University law professor who still looks like a graduate student, someone who has spent years in library stacks researching arcane subjects, miles from the real world. He's very pale and very quiet, as if he doesn't want to bother the fellow in the next cubicle. His hair sometimes sticks straight up, but he doesn't notice. Lessig has a student's idealism, too; he wants to change the way the world does business.

The entertainment industry, Lessig feels, is locking up old movies, books and songs that long ago should have transcended private ownership and become the property of the people, just as Thomas Jefferson, James Madison and the other framers of the Constitution intended. At stake, he says, is not only our common cultural heritage, but also the freedom that writers and musicians and filmmakers must have to interpret, reinterpret, adapt, borrow, sample, mock, imitate, parody, criticize--the very lifeblood of the creative process.

But Lessig doesn't merely want to free the past. He wants to free the future as well. That's something else that the entertainment companies want to lock up. The laws they are proposing and the technologies they are developing, he says, will make creativity on the Internet a wholly owned subsidiary of the Recording Industry Assn. of America and the Motion Picture Assn. of America.

His immediate target is a 1998 law that extended copyright protection an additional 20 years. It was a measure so obscure that the Senate passed it unanimously, with no debate and little public discussion. But it so outraged Lessig that he mounted what has become the first constitutional challenge of copyright limits to ever reach the Supreme Court. On Oct. 9, the former Supreme Court law clerk will try to persuade the justices to end private ownership of hundreds of thousands of artistic works, including some of America's most cherished. If he gets the court to agree, both the past and the future will change.

''The world won't end,'' he says. ''Hollywood will just have to find a different way to make money.''

During the past three years, as his copyright lawsuit has wended its way through the courts, Lessig has been talking it up in forums around the country and Europe. Walt Disney, he is always careful to say, is his hero.

Disney, one of the most popular artists of the 20th century, knew what a bountiful resource the past could be. He refashioned the Brothers Grimm's dark fairy tale "Snow White" into an upbeat charmer. He took Perrault's "Cinderella" and made it an enduring fable of pluckiness. "Alice in Wonderland," "The Jungle Book," "Pinocchio," "The Three Little Pigs," "Treasure Island" were all adapted from classics and became classics themselves.

What outrages Lessig is that Disney and other entertainment companies don't want this process repeated with their own works. They want very much to continue earning money by keeping their copyrights forever. Toward that end, Congress has extended copyright 11 times in the past 40 years, effectively locking away everything that Disney and every other entertainment company have ever produced.

If copyright laws lock up the past, they also are a very potent instrument for controlling the Internet. To a group of computer programmers in Monterey, Lessig recounts an anecdote about Sony's robot dog, Aibo. An Aibo fan wrote a software program to make the dog dance to jazz. When the fan posted the code on the Internet so that other Aibo enthusiasts could teach their own dogs to dance, Sony lawyers contacted him and told him he had violated the Digital Millennium Copyright Act. Even though you've spent $1,500 for an Aibo, Sony still has control over how you play with it.

''Ours is less and less a free society,'' Lessig says. ''The law is trying to make creativity a regulated industry.''

Lessig was a professional singer as a child, which gives him a natural ease on stage. His audiences often applaud mightily. But no one writes to Congress protesting how copyright is being abused on the Net. No one holds demonstrations. ''We have this culture of passivity,'' he says. ''Most people like being spoon-fed culture. Look at the reaction to shutting Napster down. There was none. It's like we're the Soviet Union after communism. We've had 80 years of massive broadcast culture. It's the only way we know to experience the world.''

His lawsuit, officially titled Eldred v. Ashcroft, is a way of forcing the issue. It's a measure of the strength and importance of Lessig's case that he will be opposed in court by Theodore B. Olson, the U.S. Solicitor General himself, and not some government underling. Olson won all eight cases he argued before the Supreme Court last term.

The court will consider the passage in the Constitution that states ''to promote the progress of science and useful arts,'' Congress should grant copyright only for ''limited times.'' For Congress in 1790, the limit was 14 years, plus another 14 if the creator was still alive. By that standard, "Snow White," made in 1937, would have joined Shakespeare, Jane Austen and Mark Twain in the public domain in 1965. Instead, "Snow White" is now due to enter the public domain in 2032--unless, of course, copyright is extended again.

Lessig will argue that the extensions give the entertainment companies "a perpetual term on the installment plan.'' For the benefit of big campaign contributors, he contends, Congress is perverting what the framers intended. Olson will respond that since copyright is not literally perpetual, Congress' extensions are constitutional.

There's another wrinkle, one that speaks to Lessig's anger over the broadening of all forms of copyright. Congress, by giving an additional 20 years to copyright holders, is also abridging freedom of speech, he argues. If the justices buy that point, new legislation would have to take Lessig's case into account. It could act as a brake on the entertainment industry's constant search for new legal tactics to put the Internet in lockdown mode while it frisks everyone for unauthorized content.

''The Supreme Court isn't owned by Hollywood,'' Lessig says. ''I'm quite confident they'll see that a free culture is a free speech issue. The law will be struck down.''

It's already getting hard to remember what it was like before the internet brought a million different voices into your home. If you grew up in the 1970s and lived in a small town, the way Lessig did, culture and news were one-way streets. If you wanted to react to something, you could write a letter to the newspaper that they probably wouldn't print, or send a screed to a fanzine that no one except a few like-minded souls would see. The local department store sold a few books and some popular records, but anything the slightest bit out of the mainstream had to be special-ordered--if you even knew about it and if it even existed.

The Internet blew through all those barricades and limitations. In its mid-1990s heyday, the Net was all about experimentation and openness, a place where no one needed a printing press to publish an article or a record company to distribute music or Wall Street's approval to start a company, where the only constraint on innovation was the imagination.

But nothing ordained that it had to stay that way. Very quickly, in fact, various interests got busy lobbying for laws and developing technology that would turn the Net into a closed system. It will bring entertainment directly to your eyeballs and eardrums for a moment, for a price. ''Once you start down this road, there's only one logic, and that's the logic of total control,'' says Duke University law professor James Boyle. ''It's a world of pervasive monitoring, because the creator has to get his money at every stage.''

One reason there's been little uproar about this is that the entertainment industry is very good at seizing the high ground. It long ago took control of all the good words in this fight: Pirate. Thief. Hacker. Stealing. It racheted up the invective, too. An Assn. of American Publishers official last year called librarians who believed in free content--a central principle of libraries for a few centuries--''Ruby Ridge or Waco types.'' Jack Valenti, chief executive of the Motion Picture Assn. of America, calls the struggle against unauthorized copying a ''terrorist war.'' In a February op-ed piece in the Washington Post, he asserted that ''the movie industry is under siege from a small community of professors.''

An industry with about $70 billion in worldwide revenues being thwarted by a handful of scholars, none of whom could get within a mile of Morton's on Oscar night? ''When I read that,'' says Boyle, ''I had a Monty Pythonesque image of a siege of this massive castle by a tiny number of individuals armed only with insults. 'Now open your gates,' they were yelling, 'or we shall taunt you once again.' ''

Yet Valenti might be right when it comes to Lessig. ''He thinks we ought to rise up against Disney like the Serbians attacking Milosevic,'' says novelist and cyber-rights activist Bruce Sterling.

Lessig doesn't boycott mass culture. His wife, Bettina, volunteers that he's always eager to see the latest blockbuster--"Minority Report," "The Sum of All Fears." He just wants to get rid of the lawyers. Disney's most enduring creation, he points out in his lectures, was directly derived from another work: Mickey Mouse was a parody of Buster Keaton's "Steamboat Bill." Nowadays, doing a parody like Mickey on or off-line would be an open invitation to a lawsuit. That's what Alice Randall got when she tried last year to publish "The Wind Done Gone," a parody of "Gone With the Wind" done from the slaves' point of view. The heirs of Margaret Mitchell slapped Randall with a lawsuit, claiming she was infringing on the copyright of the 1936 original. Publication of the novel was held up until an appeals court said it could be released on free speech grounds.

When Mitchell wrote her novel, she expected it would enter the public domain in 1992. With the extensions, this key piece of American culture is off-limits until 2031. ''Creativity always builds off the past,'' Lessig says, ''and if you call that theft, you don't understand what creativity is.''

Valenti says that ''what Larry and some of his cohorts believe is in the digital world everything ought to be available to everyone. No constraints on the rights of creative property at all.''

While this isn't what Lessig thinks, the strange thing is that it's pretty close to what the framers of the Constitution believed. Indeed, what's odd about the current copyright fight is how much it's a contemporary remake of an issue that was discussed, litigated and decided during the 18th century.

Before 1710, the Stationers' Company, a guild of printers, controlled the publication and sale of all works in England, including those of authors who had been dead for thousands of years. The Stationers scoffed at the idea that their monopoly should be in any way limited. For one thing, they warned, if the system were dismantled it would ruin the economy. Equally important, they said, they had a moral right. No other property gets taken away after 10 or 20 years, they wrote in a broadside, so why should books? It's an argument that the music and movie industries are still making today.

Nevertheless, the Statute of Anne in 1710 established a limited copyright term of 14 years. The Stationers spent the next 60 years alternately ignoring and challenging the law as they tried to suppress the Scottish publishers, who followed their own rules and were thus the Internet pirates of the era. But in a landmark case in 1774, the Stationers' monopoly was finally broken and the past was freed.

When the U.S. Constitution was drawn up several years later, this history was still fresh. Jefferson wanted to put a ''restriction against monopolies'' in the Bill of Rights, right alongside trial by jury and freedom of the press. He, like the other framers, hated concentrating power in the hands of a few, and didn't like the idea of the past calling the shots on the future either. The earth belongs to the living, Jefferson wrote Madison on Sept. 6, 1789: ''The dead have neither powers nor rights over it.''

The Eldred case, which could do so much to affect the nature of copyrights, was sparked by a book that had been out of copyright for a century. Emma, Annie and Bonnie Eldred, teenage triplets in Derry, N.H., were assigned "The Scarlet Letter" in school. They didn't like it. Nathaniel Hawthorne's classic tale of sex, shame and redemption seemed fussy and obscure--a slog, in fact. The girls grumbled to their father, a civilian computer contractor for the Navy who was retired on disability and thus had lots of time to ponder the problem.

Eric Eldred wondered if the Internet could help, which wasn't as inevitable a thought in 1995 as it would be now. He found the entire text of the novel on the Net, but the typeface was so ugly and the typographical errors so plentiful it was a strain to read. So Eldred set about making his own online version. He scanned in the text, proofreading it and adding annotations and glossary definitions and features like an 1879 review of the novel by novelist Anthony Trollope. And since "The Scarlet Letter" is more easily understood in the context of Hawthorne's other works, Eldred scanned in "The House of the Seven Gables," "Twice Told Tales," "The Marble Faun," "A Wonder-Book" and just about everything else Hawthorne ever wrote, annotating them as well.

By the time he was done, his site was getting about 3,000 visits a day from students around the globe. It had been applauded by Hawthorne scholars and won a commendation from the National Endowment for the Humanities. Eldred had also seen Bonnie, Annie and Emma graduate from high school. Never enticed by literature, they all became dancers.

Their father, though, had found a calling. There's an old Ray Bradbury story about how, in a time of future suppression, literature remains alive by people essentially becoming the classic writers, literally embodying their work so it doesn't disappear. It was a tale Eldred took to heart. He was Hawthorne, preserving his words and presenting them to the future. He soon became Oliver Wendell Holmes, Ring Lardner, William Dean Howells, Louisa May Alcott, Henry James, as well as lesser-known late 19th and early 20th century masters, including John Boyle O'Reilly, author of the forgotten 1890 classic "Canoeing Sketches," and H.M. Tomlinson's definitive 1912 account of life on a tramp steamer, "The Sea and the Jungle." Since all this work was in the public domain, Eldred didn't have to track down the author or ask anyone's permission or pay any fees. He was one small part of a movement that was putting thousands of old books online, for free, for the betterment of all. The Web was becoming a library. No student would ever be confused by Hawthorne again.

Then the politicians got involved. On Oct. 7, 1998, Congress passed the Sonny Bono Copyright Term Extension Act, named after the late congressman and singer who believed, said his widow, Rep. Mary Bono, that ''copyright should be forever.''

Before the Bono act, copyright limits expired 75 years after publication, which means that Eldred was only a few months away from posting Hemingway's "Three Stories and 10 Poems," first published in 1923. The following years, the door would have slowly open on modern culture: "The Great Gatsby," "The Maltese Falcon," early works by Willa Cather and Wallace Stevens, "The Sun Also Rises," ''Winnie the Pooh,'' ''Rhapsody in Blue,'' ''Show Boat,'' the best of Irving Berlin, Ring Lardner and Virginia Woolf, the first talkies.

And Mickey Mouse. The law when it comes to a creation such as Mickey is complex because trademark enters the picture. Still, Mickey, who first gained fame in ''Steamboat Willie'' in 1928, was too lucrative a part of the Disney company, too tied up in its corporate image, to risk. Disney donated money to 18 of the 25 sponsors of the Bono act in the House and Senate, and lobbied heavily for its passage.

By extending copyright protection for an additional 20 years, the Bono act essentially functions as a dam, preventing any work from entering the public domain until 2019--an estimated 400,000 books, movies and songs. A handful of classics will remain available, in print or on CDs or DVDs. Everything else will quietly crumble--literally, in the case of the negatives of many films. And for what? Eldred wondered. Just to keep up Disney profit margins and enrich the heirs of Gershwin and Hemingway?

It was a blow against the Internet, too. A traditional library with physical books can stock and lend out whatever it wants, whether the volume is in copyright or not; an Internet library like Eldred's is restricted to material in the public domain. ''Companies don't want you to be able to get anything on the Internet for free,'' Eldred says. ''They just want to sell you their own versions on pay-per-view.''

Annoyed and depressed by the Bono act, he contemplated civil disobedience--publishing works from 1923 and '24 until he was arrested. He announced he was shutting down his site. He wrote letters. He fulminated. He became, in short, an activist, which is how Larry Lessig, then teaching at Harvard, heard about him, sought him out and filed a lawsuit on his behalf.

Patricia Lessig was pregnant with her third child in late 1960 when she went to see ''Village of the Damned,'' a horror flick about a rural town whose womenfolk are mysteriously impregnated by aliens. The women give birth to a race of superhumans capable of reading minds and imposing their will on others. Four decades later, when Patricia contemplates her super-achieving son, the movie offers the only reasonable explanation. ''I think he came from outer space.''

There is something unearthly about Lessig. He grew up in Williamsport, Pa., where his father, Jack, started a steel-fabricating business that ultimately employed about 150 people. Jack ticks off his son's most memorable qualities: Never indecisive, never seemed to fail in anything, and whatever he got into, whether it was starting a newspaper in the fourth grade or running a Jerry Lewis-style telethon, he became the leader. ''He was always about four or five steps ahead of everyone,'' says Jack.

Lessig wanted someday to be president, and made a good start. He was valedictorian of his high school class, president of the Pennsylvania Teenage Republicans and the youngest member of any delegation to the 1980 Republican convention. Lessig was a sophomore at Penn by then, running a state campaign for a man named Jim Ketcham. Despite Ronald Reagan's long coattails that year, Ketcham lost.

If the campaign cured him of the desire for a life in politics, graduate studies in philosophy at Trinity College at Cambridge University undercut his Republicanism. Studying under the long shadow of Ludwig Wittgenstein, the dark prince of Cambridge philosophers, Lessig learned that the way to influence a seemingly intractable debate was by reframing it, getting both sides to confront something they hadn't seen before. It's a technique that has served him well in the Eldred case.

While attending Yale Law School, Lessig did a summer internship at the highly regarded Chicago law firm of Miller Shakman & Hamilton. ''He was the best any of us had ever seen, and our collective experience stretched back decades,'' remembers Barry Miller, now an assistant U.S. attorney. That ecstatic recommendation helped get Lessig a clerkship with Richard Posner, probably the best-known and most influential appeals court judge in the country.

''He was rather like Ralph Nader, but brighter,'' says Posner. In addition to Lessig's intensity and moral zeal, Posner was struck by something else, something Nader doesn't exhibit: a restlessness. ''You know that novel by Somerset Maugham, 'The Razor's Edge'? The fellow in that book was someone who was searching for something meaningful, just like Larry. He ends up at a monastery in Nepal. He doesn't want to or can't lead a normal life.''

Lessig used his spare energy to travel, trying to see what other people were taking for granted. He hitchhiked through communist Eastern Europe, smuggled a mechanical heart valve for a Jewish dissident into the Soviet Union by hiding it in his pants, read 30 classic novels in 30 days during a trip to Costa Rica. In the house he and Bettina, a lawyer with Bay Area Legal Aid, bought and are remodeling in San Francisco, his passport lies open on a table, as if it might be needed any minute.

The final rung on his educational ladder was the ultimate for any law student: a Supreme Court clerkship, during the 1990-91 term. In his interview with Antonin Scalia, Lessig coolly critiqued the justice's recent rulings. Scalia, who likes to be challenged by his clerks, gave Lessig the job. That annoyed Scalia's other clerks, all of whom correctly suspected Lessig was not a judicial conservative. ''We weren't on speaking terms for much of the year,'' says one of them, Chris Landau.

Lessig first stepped onto the public stage in late 1997, when U.S. District Judge Thomas Penfield Jackson appointed him a ''special master'' in the Microsoft case. His task would have been to conduct hearings and issue a recommendation to the court, which would have given him an enormously influential role in the most important antitrust case in a century. But Microsoft didn't want anyone to be a special master, and certainly not Lessig: The company claimed he was biased, and tried to prove it by digging up an old e-mail in which Lessig had teasingly equated installing a Microsoft product on his computer with selling his soul to the devil.

Ultimately, an appeals court ruled against the involvement of a special master. Lessig has forgiven Microsoft but not himself for blowing his big moment.

''There's a great song by Sarah McLachlan called 'Angel'--'You spend all your time waiting/ for that second chance/ for a break that would make it OK . . . ' There's a certain sense I'm always feeling that I'm making up for Microsoft. I just want the chance to do some work, some real work, which could do some good.''

After Clinton signed the Bono act, Lessig was in a hurry to challenge it. He thought the retroactive extension so obviously ridiculous, so clearly unconstitutional that he thought there would be dozens of suits. He wanted to be first. Eldred v. Reno, as it then was called, was filed Jan. 11, 1999, in U.S. District Court in Washington. Opposition by the Hollywood studios, the music companies and the book publishers was understandable. But even copyright lawyers fundamentally sympathetic to Lessig didn't think much of the case--which turned out to be the only challenge to the law.

Peter Jaszi, an influential copyright scholar at American University, was one of the early skeptics. ''It's not so much that we thought it was a terrible idea but that it was just unprecedented,'' he says. ''Congress has been extending copyright for 180 years, and this is the first time someone said it violated the Constitution.''

U.S. District Judge June Green confirmed the skeptics' fears. Without letting the matter go to trial, she ruled in favor of the U.S. government on Oct. 28, 1999. The appeals court split its Feb. 16, 2001, decision, ruling 2-1 that Congress had not overstepped its bounds. Lessig appealed to the Supreme Court, but there seemed little reason for hope.

The high court postponed a decision on taking the Eldred case three times last January. Lessig plunged into despair. He thought the court would decline but needed to give one justice time to write an opinion disagreeing with the decision. The likely candidate was Justice Stephen G. Breyer, who had written a Harvard Law Review article in 1970 suggesting ''we should . . . hesitate to extend or strengthen'' copyright.

Larry and Bettina were in Hawaii. He slept a lot, stared into space. ''He's a perfectionist. At everything,'' says Bettina. ''He turned into an abyss of inconsolableness.''

On Feb. 19, the court decided to take the case, which meant at least four justices decided it was worth hearing. The legal community was surprised. Most major shifts by the Supreme Court are widely anticipated, arriving in the wake of broad-based social movements and multiple lawsuits spanning several years, says University of Chicago legal historian Dennis Hutchinson. ''Solitary crusading individuals are very unusual, and law professors acting on their own don't fare very well either,'' he says. Hutchinson could recall only one case involving law professors: Tileson v. Ullman, from 1943, an effort by Yale law professors to make it legal for doctors to prescribe contraceptives if a woman's health was in danger. The case was dismissed on procedural grounds.

The entertainment industry can only hope for a similar escape. The Supreme Court, Jack Valenti says hopefully, is merely having some "legal fun."

The mere fact that the court took the case has affected the entertainment business. Peermusic, a major independent music publisher based in the Bay Area, has been putting a clause in catalog acquisition contracts saying that the value will be cut if Bono is struck down. But what's more problematic is a deal that was done before the court took Eldred.

Peermusic had acquired the catalog of Hoagy Carmichael and was working to ''rejuvenate it,'' as they say in the business. The studios were reacquainted with songs such as ''Stardust'' and ''Georgia on My Mind''; negotiations were underway with a store chain to sell a line of products based on Carmichael's romantic allure; a musical is in the works.

But if Bono falls, ''Stardust'' goes in the public domain immediately, and ''Georgia" follows in three years. ''There's no incentive for us to do what we're doing if we don't have an opportunity to earn renumeration,'' says chief executive Ralph Peer II. ''I would predict interest in the Carmichael repertoire would take a nose-dive.''

Unless, of course, it increases as studios use work that they earlier would have had to pay for and singers record tunes that are suddenly freely available. Those who favor expirations for copyright point to what happened with Frances Hodgson Burnett's "The Secret Garden," the ageless tale of a boy and girl spiritually renewed after discovering a hidden garden on a Yorkshire estate. First published in 1911, the work entered the public domain in 1986. There are now at least 12 print versions of the book as well as two online versions. There has been a TV adaptation, a musical, a big-budget Warner Bros. movie, a cookbook and, undoubtedly, numerous student reworkings.

No one owns "The Secret Garden" anymore, and consequently everyone owns it. Probably the same would happen to Winnie the Pooh and Mickey, but Disney would not give them up without a fight. "Winnie the Pooh" was published in 1926, which means if the law is overturned, it immediately comes out of copyright. This would shave millions off the bottom line of its publisher, Dutton, a division of the British conglomerate Pearson. What's less clear is how such a decision would affect Disney, which controls the merchandising rights and makes a billion dollars a year from Pooh fruit juice and other items.

Could someone start selling their own Pooh fruit juice? Disney would say no, because it has a trademark on the Pooh characters, and trademarks, unlike copyrights, never expire. But at least one appeals court ruling, issued in Missouri in 1890, gives scant comfort to Disney.

In that case, a publisher had reissued a Webster's Dictionary from 1847 that had gone out of copyright. They were sued by the G. & C. Merriam Co., the original publishers of both that dictionary as well as several subsequent Webster's. Merriam argued that their trademark on the Webster's brand was being infringed by an upstart. Samuel Miller, a Supreme Court justice who was sitting in on a circuit court, slapped them down, writing that he didn't believe that ''a party who has had the copyright of a book until it has expired may continue that monopoly indefinitely, under the pretense that it is protected by a trademark or something of that sort."

At the end of August, Lessig was speaking before what he swore would be his last audience, a gathering of the Free Software Foundation in San Francisco. He had the Eldred case to attend to; he was going to Japan for the fall semester; he was finally running out of energy. But he agreed to be a guest at a dinner for big donors to the foundation, and he spoke in a rented club for those who only had $10 to contribute.

Introducing Lessig, software activist Henri Poole says he isn't even going to try to get people at the club to stop playing pinball for the next half-hour because he knows that's impossible. Lessig gamely begins anyway--warning, cajoling, trying to inspire. ''Everything that Washington proposes gets worse than the thing they did before,'' he says.

In March, Democratic Sen. Ernest F. Hollings of South Carolina introduced legislation that would require CD players, televisions and computers to block unauthorized copyright material. Opponents dubbed it the ''police state in a computer.''

On July 25, Howard L. Berman, the Democratic representative whose district includes North Hollywood and part of the San Fernando Valley, co-sponsored the Peer-to-Peer Piracy Prevention Act. It would allow anti-copyright vigilantism, giving Hollywood immunity for ''disabling, interfering with, blocking, diverting, or otherwise impairing'' home computers that might hold illegal copyrighted material.

Not since the Licensing Act of 1662 reaffirmed the power of the Stationers' Company to conduct searches and seizures of illegal books and presses has the state given such authority to a private entity. ''Hollywood is terrified'' by the Eldred case, Lessig tells the programmers, ''but whatever victory we can win in the courthouse they can take away with new legislation.''

He says he's pleading with them. ''This war is being waged whether you participate or not. It will be won whether you're on the field or not. The question is by whom.''

After he is finished, a college student comes up and starts talking in a sort of animated fury. This fellow lives in Berman's district. What would be better, he wants to know: to talk sense into Berman or go work for his opponent? ''What do we do?'' he says. ''When do we start?''

A soldier has been enlisted for the battle. It's just one guy, and who knows if he'll even follow through. But Lessig considers it a successful evening.

*

David Streitfeld is a Times staff writer based in the Bay Area.
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TOM BARGERS ARTICLE IN RESPOSE TO LESSIG _ AN EXPRESSION OF SUPPORT

In the interest of presenting examples of ‘saving classic films and records," I search my
memory and dredge up a few tales from a long career. I apologize for the length, but hope you
find it amusing. I understand that I am speaking to a distinguished group of scholars such
as yourselves. I am not sure how I stumbled into these scenes like Forrest Gump, but like I
say, that’s life in the Hollywood trenches.

The Lessig article in the LA Times Magazine sparks a response from me. Don’t get me wrong,
Prof. Lessig is my Higher Power. But I remain concerned that his reliance on "Free Mickey
Mouse" and the prison bars may be a crowd-pleaser at Geek Conventions, but may appear
frivolent to the Supremes. Somebody amongst you should forward this declaration to Prof.
Lessig, he needs our help! []

TOM’S MANIFESTO STATEMENT
I state specifically that perpetual copyright extensions will mean the deterioration, and
loss, of film negatives and music masters, which are neither accessible to the public nor
academic institutions, for enjoyment, comment, or interpretation. They are locked away. This
is what we commonly call "creating scarcity," and in my opinion the situation cries out for a
new phrase, "abuse of copyright." Assuming that one chooses to interpret "copyright" as a
grant from the public, then we must intervene to prevent the destruction of a natural public
asset, as surely as the right to clean air, or the wilderness of Alaska belongs to as all. A
part of the Commons.


THE DAWNING OF DIGITAL HOLLYWOOD 1985
The first appearance of music synthesizers in 1985 spawned a career change for me. My partner
at that time was filling up the facility rooms with KEM flatbed film editing systems and
foot-cranked Moviolas, and we foresaw the opportunity to deploy the first prototypes of DAT
players and samplers. Bear in mind that AUDIO devices presaged VIDEO devices by ten years.
There were of course, continuing problems in the SMPTE and MIDI fields, that of syncing
devices from various manufacturers. But the bugs were worked out over time.

Our smaller facility was able to work faster and cheaper than the Hollywood shops. The
studios and the unions foot-dragged and fought against the technology possibilities, and it
was (as you guessed it), Jack Valenti to whom they turned. After all, the film post
production method had been perfected and had survived for seventy-five years. But that method
had at its foundation, the meticulous preparation of tape and film that necessitated
"analogue" second-or-third-generation" copies.

The first rumblings from Jack Valenti did not not noticeably impede our progress. The
copyright fair use system was still "leaky" enough (in Jessica Litman’s phrase) to enable us
(as professional editors) to share files. The entire file sharing protocol as utilized by
Apple has ALWAYS been a fundamental principle, and it was only in recent years that
ill-informed studio heads and Congresspeople have sought to disable a well-established
functionality.

I hope by this example that you see that the very basis of computers has always been open
file sharing amongst workstations and same-generation dupes. As Jim Griffin has so eloquently
pointed out "If you take away the ability to copy files, then you are taking away the
instruments from musicians’ hands."

(Certainly, we film professionals could seek a special exemption and get our share of the
pie. How could you accomplish this? Some sort of license? Some sort of official Union
certification?

I will tell you that recently my partner was terminated for broadband abuse by Cox.net for
sharing audio sound efx files from his home in Laguna Beach with video files at my home
workstation in Santa Monica. And there is no appeal to that decision. There is no one person
to confront at Cox.net. So much for the grand scheme of cottage industry workers.)

DIGITAL FILM TECHNIQUES IMPROVE
As the studios were forced to accommodate the wrenching and expensive changes in post
production and animation methods, it became imperative to archive the entire television, film
and music libraries. In my opinion this is an obligation as trustees of priceless copyrights.
But technology continued to improve exponentially between 1985 and 1998. Into this vacuum
crept three groups of people,

(1) documentary film makers
(2) collectors
(3) classic film distributors.

These three groups were motivated by love of art.

DOCUMENTARY FILM MAKERS
We’ll make short shrift of this category, but it is what propelled me into the strange
twilight world of "people who hoard assets"

A certain sense of protection is afforded documentarians. You may mention the guaranteed
right to profile news events and persons in the public eye. You may say that "we don’t pay
news sources." For example: a scene bystander who demands payment. But in the main,
documentarians have an academic enjoyment of historical photos and news clips; that is, the
materials are in the public domain and the "players" long dead.

COLLECTORS
Special subgroups are obsessive collectors. I will make the case that these people are
"dumpster divers." And in every case, they live in homes dominated by towering columns of
tapes, magazines and phono records. The profit motive or being characterized as a "pirate"
simply does not pertain to these eccentric individuals. You will see in each case, that the
family members and wives are gradually displaced from the home by the husband’s accumulation
of cultural treasures.

I have stumbled across several examples of these collector-types in the search for
documentary materials. Please note that their motivation has always been the urge to
preserve. "One’s man’s trash is another man’s treasure."

THE STRANGE AND SAD SAGA OF JOE P.
I was given my first insight into this business by a character known as Joe P. Joe was a
dumpster diver. Joe was horrified that local TV stations threw away each day’s news tapes. He
segued from a radio voice career to video editor. In fact, he had served prison incarceration
in a contempt charge related to payola hearings. Joe was touchy and borderline paranoid, and
required careful handling. Joe’s apartment was filled floor-to-ceiling with 3/4" videotapes,
and he spent his waking hours making machine-to-machine copies of his treasures. He had some
unfathomable method of logging the contents of these tapes, but he knew everything, and he
was a last-resort resource for unobtainable insert shots.

Joe set up an ancient 8mm-film projector, and in the darkened lights of the crummy Van Nuys
apartment, I witnessed Elvis Presley on Ed Sullivan. Hopefully, you appreciate the priceless
experience; this was a FILM REEL, one of the only dupes of the original.

Joe was making the rounds of the rip-off distributors with his compilations of 50’s
commercials. These distributors at that time were the likes of Goodtimes, Rhino and K-Tel.
The companies who were stocking grocery stores with $5 tapes of "It’s A Wonderful Life" and
"Songs From your Favorite TV Shows." Joe indeed contacted ad agencies McCann Ericson and
Young & Rubican, and requested duplication permission. They responded with astonishment, "Oh
Good Lord, of course! Thank you for preserving them! We threw them out years ago!"

These materials are not even preserved in the History of Broadcast Museum in New York or the
UCLA Television Archives.

Perhaps many of you would melt with delight, seeing once again, the Jolly Green Giant
animations, Bosco, Ovaltine, Keebler Twins, Burma Shave. Or the cigarette commercials
starring John Wayne and Desi Arnez. ("Fresh! Delightful!") Last time I looked, both still
dead of lung cancer.

So from Joe P. I learned the Collector’s Mantra: "First do no harm." This means present the
materials in their entirety. The lower rungs of damnation were preserved for Rhino Records,
who started off as bootleg collectors and Rose Bowl swapmeet sales. Or Dick Clark
Productions, which bought up the rights to every rock video ever produced. Among Dick Clark
assets are Hullabaloo, Shindig and the Ed Sullivan Show. Particularly prized are priceless
Broadway segments such as "Camelot", "Oklahoma" and "South Pacific" with original stars
Robert Goulet and Barbra Streisand.

It may not have occurred to many of you Boomers---but consider this: these musical selections
are now RENTED for $800 a second. This means that your children will NEVER in their lifetimes
witness what you saw in your childhood: an entire performance of "Hound Dog" featuring Elvis
enduring insults from Milton Berle, the Beatles on Ed Sullivan, or Glen Campbell on Shindig,
or the Beau Brummels, on Hullabaloo, or the Rolling Stones meltdown on The Dean Martin Show
at the Palladium.

I have seen at Joe’s house the entire TV series collection of Soupy Sales, and stolen tapes
from Jerry Lewis’ son’s garage, who was systematically erasing them to record televised
baseball. Have I made my case? Corporations lock these materials away FOREVER.

You may wish to share your cultural heritage with your children, but that is impossible. Can
we hope for any reversion to the public domain? Any loophole, Counselor?

I don’t know what’s happened to Joe. He’s probably killed somebody by now, or suffocated one
night under a pile of videotapes as he plodded to the refrigerator for milk for his ulcer.

The Original Copyright Victim. Say a prayer for Ol’ Joe, and thank him for preserving your
children’s birthright.

CAPITOL RECORDS
I went to work at a photo lab in 1980 for three years’ duration. We were down the street from
Capitol Records, so our main professional task was providing rush jobs on "stats", a quaint
old-time term that describes "quick-and-dirty one-light photos" for placement in mockups and
comps. So I was in and out of that stack o’records monstrosity that had been designed in 1950
by the same fellow who designed the Pan Pacific Auditorium arches. The word had it—that Glen
Wallich initially hated the design for the building—but changed his mind when the architect
cleverly pointed out the advantages: "Shorter hallways. Less employee loitering. Save cost on
air conditioning." Capitol Records was the first building to feature air conditioning.

Talk to employees these days—uh—they’d rather be over on Maple Drive. ‘Nuff said.

So one of my daily tasks was to commune with the vault manager at the former Crocker Bank
Building next to Capitol at Argyle and Hollywood. This was the repository stash for photos,
POP stands, promo junk and art comps. The stuff was thrown all over the place. Somehow the
word came down one day to vacate the building and all the JUNK was thrown in the dumpster.
This was original art comps of the Beatles butcher cover, and Beach Boys art, and unvalued
photos of Murray Wilson shaking hands with Nik Venet and the Beatles goofing with Bhasker
Menon---all tossed.

Needless to say, most of this ended up in the hands of Phil Ochs archives, and the artboards
in hands of Japanese collectors.

If we are indeed to pursue the slippery slope of zero-tolerance of copyright violations, then
to Jay Samit and Ted Cohen, I say this---shouldn’t every collector and gallery owner and book
publisher in the world be PROSECUTED for presenting "dumpster" cartoon cels from Disney "The
Sorceror’s Apprentice" or Beatles Butcher cover boards?

HELP SOUGHT FROM REP. BOUCHER
Bill Evans and I are constituents of Rep. Rick Boucher. In our initial meeting with him in
summer 2001, amongst other subjects, I voiced my concern concerning two recent events.

THE BIG BANG COLLECTION
In my own hometown in Virginia, a fellow had amassed 30,000 phono records from the ‘Forties
and ‘Fifties. An invaluable collection of local bluegrass local performers, where the "Big
Bang" happened in the Birthplace of Country Music, SW Virginia. He subsequently donated the
collection to a tiny college, Ferrum College. But archiving safety masters was held up due to
"fear of copyright litigation."

FLYING TAPE PARTICLES
Same time frame, I talked to a fellow, Joe, in Washington, D.C, who turned out to be a friend
of Kevin Doran’s from his wild youth. This fellow, a record store owner, was investing money
in an old-time guy whose house was filled to the roof with live concert tapes he had lovingly
recorded himself (with performers’ permission) over fifty years. His wife and family had
moved out from the incroaching blob, but it’s possible the husband/recordist hadn’t noticed.
In any event, it is said that these tapes are raw and exciting, filled with drinking
hilarity, and snake tonic sales pitches and were a side of performers like Johnny Cash, the
Louvins, the Forrester Sisters, Stanley Brothers, Hank Snow, etc etc. that we never knew from
the plastic Nashville countrypolitan orchestrations of producers Chet Atkins, and Don Law.

New Nashville cats were nosing around, and wishing only to "hear a taste." (Understanding of
course, each time you spool up an old reel-to-reel 1/4" tape, you risk watching in horror as
the magnetic oxide flies off onto the floor. But at least you DO get to hear it. But only
once.)

Joe, in Washington ,of course, takes the position that he can start releasing these masters
on his own record label. After all, he has paid for the archiving process. And in every case,
as noted, the performers were delighted to have accommodated the field recording process.

BOUCHER AGREES PART II
So in speaking of these two recent cases to Rep. Boucher, I made the point, "Sir, as the
fellow charged with Congressional oversight of the Patent Office, the Copyright Office, and
the Library of Congress and the National Archives, " ---(where someone purloined Kennedy’s
brain twenty years ago)—I continued out-of-breath, —"Sir, I beseech you to let the academics
and archivists commence the critical task of preserving our National Heritage."

Now somewhere in there I threw in a few references to the embalmed Indian Chief brought back
by Lewis & Clark and moth-eaten buffalo hides residing in crates in the basement of the
Smithsonian. But I feel confident that Rep. Rick grasped the lucidity of our petition. He
gave us a ringing endorsement. This being Rick Boucher and all, a recognized party cut-up—he
pursed his lip, nodded and said—" I fear for the day that we have to pay each time we read a
page."

All in all, as we rode off into the sunset, Bill Evans and I knew this had been a good day.
This being Abingdon, Virginia at 10 p.m., we went to Shakeys’ to celebrate with pepperoni pie
and RC Cola. And we toasted Rick. He's cool.

INDIE DISTRIBUTORS
A number of companies took an early lead in the evolving VHS business and subsequent demand
for product from video stores. I knew a number of them who haunted film festivals and scoured
the planet to locate and purchase the most pristine negatives of classic films. One
little-known example is the Prague Film Festival. Within in its gloomy vaults reside "one"
copy of important film masterpieces deposited for "one" projector performance in the
‘Thirties and ‘Forties and later. They are carefully attended by a small staff who are
salaried $40 a month. Cleaning the print, splicing carefully, lovingly.

Often the search for a print purchase would involve the widow or estate of a Rosselini or
DiSica or Ozu. The ultimate wet-dream was to uncover a lost classic. My mentor and friend
Peter M. scoured the planet for best prints, and instituted the practice of issuing deluxe
box sets of foreign masterpieces at Connoisseur Video. Mind you, these would be subtitled
re-issues and would replace the shoddy prints that littered grocery store cutout bins.

DEN AND BEYOND
I recently enjoyed dinner with the fellow who purchased at auction the assets of DEN. He had
been prepared to pay multiples of the eventual price--$100,000. And most interesting, he has
been browsing through the outtakes of Chad’s World. Heh.

This fellow has 1000 films in his library. Most of them Spanish language classics. He is
quite knowledgeable regrading impending PD lapses. He began collecting when he was twelve
years old, and has continued for thirty years. Somehow he contacted David Begeleman in the
‘Sixties (and as a teenager) finagled the rights to re-distribute VHS "kids' film club"
copies. So he collects film treasures as a hedge against future value, and as such, bears the
responsibility to maintain the condition of the negatives. There is no viable alternative
method of maintenance of the original film neg or interpositive. He must consider his options
at this point to make a high-def conversion or digital backups.

He has in his possession one of the great lost classics. He would not tell me the name, but
the movie studio contacted him and said, "Hey, you cannot release this thing, so you must
give it back!"

He didn’t and wouldn’t. So he’ll just hold his cards until the future arrives.

JIM HENDRIX AT ALBERT HALL
When I met my first manager, I was 19. "Bud Mc" had produced a documentary on Hendrix with
Michael Jeffreys "Rainbow Bridge." But as partners with Steve Gold and Jerry Goldstein, they
had recorded a seminal burn-the-house down performance of Jimi, Noel and Mitch at Albert Hall
in 1967. I was shown this tape in 1998 and felt it was a faithful representation of the show
I myself had witnessed in Atlanta when Jimi was opening for the Monkees. My immediate concern
was to question the condition of the negative, and the audio mix from the house desk.

But we don’t know the answers yet. The tapes have been in litigation for thirty years. Jerry
Goldstein is still alive, Steve Gold died last year. That's one successful litifa=gation
tactice---wait 'til they die.

You will recall the colorful reputation that (former partners) Gold & Goldstein enjoyed as
the managers of Tanya Tucker, War and Eric Burdon in the 70’s. The only copy we’ve seen of
HENDRIX AT ALBERT HALL is a VHS copy of a VHS copy, and it is being sold on Eric Burdon’s
website. Another case of copyright system failure.

THE RAT PACK
My friend George had a digital audio job for an internet startup. You may have heard the
public disclosure that the showroom manager at the Sands had secretly recorded the Rat Pack
Years---every performance. In modern days, this was a well-paying job my friend George had,
archiving, mixing and digital splicing. I expressed alarm that these start-up people were
committing production funds on something that had not been cleared with the families of these
dead performers! Sure enough, they got nailed.

I don’t know what’s happened to those priceless tapes. But I’m glad they were
preserved---Francis cracking one-eye jokes at Sammy’s expense, the Jerry Lewis tearful
reunion with Dino, and Marilyn, Jack and Peter Lawford onstage together. Here’s hoping the
tapes are preserved until day that the copyright club is removed from Tina Sinatra’s hands.


ORSON WELLES
I introduced (my mentor) Peter M. to a cameraman/director with whom I had worked for a
decade. Cory G. who had toiled selflessly and unpaid for Orson Welles for many years. He was
the cinematographer on well-known unfinished pieces such as "F for Fake," "The Other Side of
the Wind," and collaborated on the unproduced screenplays "Hell of A Woman," "The Big Brass
Ring" and "Cradle Will Rock."

In fact, being chronically broke, and a true aficionado of women, Orson enjoyed moonlighting
as a film editor on a number of adult film classics of the ‘Seventies.

Cory G. has maintained, at his own expense for thirty years, the climate-controlled storage
for the outtakes and unfinished edit masters and negative reels for such lost masterpieces as
"It’s All True", and "The Other Side of the Wind" and "Chimes At Midnight" and "Don
Quixote." He still has them secured.

Orson’s method of production, as commonly understood, was to shoot and then take a break to
raise more financing. So these films are known as the Holy Grail of lost classics, (or at
least the Roger Hornsby of baseball cards.)

They do exist, folks. Even the dead and deposed Shah of Iran, and hence the people of modern
Iran, have a claim on the copyrights of Orson Welles. I witnessed a partial reconstruction of
"It’s All True" at Orson’s wake. (Those of you who don’t know the pivotal place in history
that this film occupies, make a google search now. We’ll take a popcorn break and wait for
you to return.)

Cory G. took the box of Orson’s ashes and carried it in his car trunk for six weeks. It was
extra large of course.

His ashes were later secretly scattered at sea by Oja K.

I read the article with bit of sketicism initinally as I don't beleive that Lessig could be characterize as an ararchist by any means. To hear and see a Shockwave Flash of his recent speech go to http://www.boycott-riaa.com/lessig/free.html WARNING its uite large. (about 8.3 MB) but well woth the visit.
Boycott-RIAA is one of the mirrors for the presentation.

Thanks for the URL.

Ahhh... Good article!

Frankly, I would like to call Mr. Lessig's attention to the Rand Corporation report "You've Got Dissent" about how the Chinese Communist regime uses the Internet, hacking, spam, etc., as a means of harassing political dissident and activist groups, and the parallels to the proposed Berman bill. It can be found by clicking thus:
http://www.rand.org/publications/MR/MR1543
http://www.rand.org/hot/press.02/dissent.html

He'd probably do better by relating China's situation to the copyright fascists in this country, who, if they were to speak ill of Blacks, Latinos, Arab Americans or other ethnic or minority groups with the same arrogant brazenness that have characterized their malicious defamation of the average consumer, would probably be getting the John Rocker treatment a thousand times over. It is obvious that Valenti and his cronies don't see consumers as human beings, but as lower than vermin. This attitude was not too dissimilar to what one saw from "urban renewal planners" seeking to bulldoze low-income houses in the 1960's and 70's and put up either parking lots or luxury housing for the wealthy in their place.

Also, speaking of Disney: If, during his lifetime, copyright law was as rigidly and fascistically applied to the proverbial Biblical thousand lifetimes as it is today, when Walt Disney was creating the works (and adapting certain public-domain works) for which he has remained famous, he'd probably have done hard time in jail (maybe solitary confinement, hard to tell) for multiple violations of copyright law. Did anyone think of this from THAT standpoint?

Disney's (the company) position is the classic "Do as I say, not as I do." the only upside to this whole thing if the Copyright Extension stands is that it limits the amount of material that they can grab from the public domain and use.

When I first started taking pictures for a living copyright term was 28 years and a 28 year extension was available IF I applied for it. Now its life plus 70 years. There have been 11 changes in copyright term in the past 40 years. Long copyright terms do not encourage creators to create, it encourages them to sit on ther ass and live off of their past sucesses for life rather than continuing to create.

Or somebody else's past successes for life.

Any creator who thinks up something good should ALWAYS strive to make something better. The day I sit back and only use my past archives is the day I try to keep the wheels rolling without oiling them. Sure, it'll last but for how long?

Stop making music? Only when I'm 6 feet under

You know, part of me wants all this crap that the industry thinks will help them in the future to pass. So then nothing new comes out and no one wants to buy any of the old stuff because they've litteraly seen it 10 million times and they all start living on sponsors' donations for airtime on tv and radio. Eventually RIAA will start living off Clear Channel and the sponsors will either die out or back out. Clear Channel will break its partnership with RIAA due to the fact that RIAA is not contributing anything to Clear Channel anymore and the recording industry will go bankrupt. The MPAA may die a little harder, but it will happen. Then all the so called "entertainment" industries will have to rebuild and then they will be run on the public's terms not the money grubbing corporate bastards' terms.

Intangible things (such as ideas) should never be owned. Private contractual user agreements make a heck-of-a-lot more sense instead.

**Disney's (the company) position is the classic "Do as I say, not as I do."** -- thumbtack

And the hypocrisy reeks to the high heavens. Think of Disney's (the company) de facto piracy of Winnie-the-Pooh and Eisner's ordering of the shredding of documents to have been spotlighted in a lawsuit against Disney by the heirs and administrators of Pooh creator A.A. Milne's estate.

Any update on this . . . ?

Or is there a website for this guy ?

Cheers y'all !

Heh, Milnes hometown wanted to build a statue of pooh, but disney wouldn't let them and threatened to sue them with a copyright case. There was a campaign against disney, and they backe off before the publicity got too bad and let them have their statue.

Micky mouse was also based on someone elses cartoon.

Much as I support him, I think the chances of stoping that bill are tiny. Even in the extremially unlikely event of him somehow convinceing a biased and probably bribed judge, there would just be an appeal from hundreds of corporations. Every label, studio and publisher in the country will scream about it.

...travelling at your finger tips.
how about live?

The article is brilliant. So is the speech. I have not come across anything as entertaining and educating as this in a long time.

People here make my day/week worthwhile. Thanks so much.

Yay Dr. Lessig!

If this works the mouse is freed in 2006 I think. I would expect Disney to be showing more of an intrest. Perhaps they dont think it will work, or have already done something behind the scenes. Or they might just be prepareing for a huge lobbying campaign to replace the bill quickly