This week saw the largest uproar over copyright in a decade as Silicon Valley and Hollywood clashed at a Washington hearing over the Stop Online Piracy Act (SOPA), a piece of legislation that could radically change how we use the internet.
The bill’s supporters are pushing to undo policies that favor the expansion of the internet economy and replace them with aggressive copyright enforcement tactics. (For a flavor of what’s going on, see this helpful summary by Eric Goldman.)
The SOPA debate has been punctuated by fevered rhetoric about crime, patriotism and freedom and drawn in politicians, academics and major companies like Facebook. But there’s one important voice that has been conspicuously absent. So far there has been no sign of Lawrence Lessig, the genius law professor who created models to understand internet culture and economics at a time when Google (NSDQ: GOOG) was still brand new and iTunes and YouTube didn’t yet exist.
I first discovered Lessig a decade ago when law school friends interested in intellectual property were passing around his seminal “Code and Other Laws of Cyberspace.” The book explained how content owners were using East Coast law firms and West Coast programmers to shape the internet. It also made clear that copyright law is not some immutable truth but rather a form of social and industrial policy.
Lessig, who was a law clerk for two famous conservative judges, put a further stamp on copyright law when he represented the plaintiff in a 2003 Supreme Court case challenging the Sonny Bono Copyright Term Extension Act. The law (ridiculed by many as “the Mickey Mouse protection act”) granted 20 years of additional copyright to works that would otherwise have entered the public domain. Even though the Supreme Court upheld the law, Lessig did succeed in attracting attention to the First Amendment implications of using copyright to give companies near endless monopolies on cultural works.
Fast forward to the current SOPA debate, the outcome of which may well shape the future of online expression and the digital economy for a generation. Lessig is nowhere to be found. The copyright scholar has instead been promoting his idea of using state-level conventions to pass a constitutional amendment that would reform campaign finance. The move is consistent with Lessig’s announcement several years ago that he was stepping back from copyright issues in order to research institutional corruption.
The goal is a laudable one, but, frankly, it’s playing out at best as quixotic and at worst as a Nader-like vanity project. Either way, it appears unlikely to accomplish much of anything. Much of Lessig’s Twitter feed these days is devoted to the doings of Buddy Roemer, a former governor of Louisiana who apparently has decided to run for president. Lessig’s latest policy proposal – bringing Occupy Wall Street and the Tea Party together to amend the Constitution through a never-used provision – though intriguing, seems as probable as Herman Cain becoming ambassador to Libya.
In the meantime, Lessig has had no time to weigh in on SOPA. Lessig may well feel that in the long run, political reform is the best way to bring about quality legislation, whether it’s SOPA or any other law. Unfortunately, long-term abstractions aren’t relevant to what’s taking place right now in the SOPA debate. The reality, in Lessig’s case, is that he is sitting on the sidelines when he could be providing invaluable tactical and intellectual guidance on a crucial issue.
Come back to copyright, Professor Lessig. Your country needs you.