Issue 10.10 - Oct 2002
Lawrence Lessig's Supreme Showdown
The Great Liberator Lawrence Lessig helped mount the case against Microsoft. He wrote the book on creative rights in the digital age. Now the cyberlaw star is about to tell the Supreme Court to smash apart the copyright machine.
By Steven Levy
What's left of a dream is stored at the Stanford Law School library in 12 fat green loose-leaf binders and several legal boxes of supporting documents and briefs. They chronicle the 54 days that Lawrence Lessig, the Elvis of cyberlaw, helped Judge Thomas Penfield Jackson with the mother of all tech litigation: Department of Justice v. Microsoft. It was to be Lessig's greatest moment.
Once a "right-wing lunatic," he's become a fire-breathing defender of Net values.
In late 1997, after reading a profile of the super-brainy professor in the Harvard Law Bulletin, Judge Jackson had tapped Lessig to sort out the technical aspects of the case. "He was as knowledgeable as they come," says Jackson, who sits on the US District Court in DC. For the next two months, Lessig and his overqualified clerk, fellow Harvard Law professor Jonathan Zittrain, worked almost nonstop to produce a report. Lessig's time logs, which document the 278 hours he spent on the case (billed at $250 per hour, a bargain rate for someone with his credentials), reveal only one day off: Christmas.
Some days he clocked 11 hours.
What the logs don't show is the quiet transformation Lessig had been undergoing, from a respected constitutional theorist into a fire-breathing defender of Net values. With the Microsoft case, he would be able to make his mark.
On February 3, 1998, Lessig called Microsoft and the government to a public hearing that was to be held in Boston in a few weeks, and flagged the courthouse administrator to prepare for what undoubtedly would be a huge media event. Lessig would use the forum to cut through the self-interested portrayals of the facts on both sides and draw a road map for resolving the thorny questions in cyberspace's grand shootout.
All the while, though, Microsoft had been maneuvering to get Lessig off the case. And that same day, the Federal Court of Appeals had the last word: Lessig was out.
His friends and admirers now view the episode as one that accelerated, by dint of publicity, the most brilliant career in Internet law. Lessig has since published two successful and influential books: The first, Code, is a groundbreaking deconstruction of the digital age. The second, The Future of Ideas, is quickly becoming the bible of intellectual property monkey-wrenchers. Lessig also founded a clinical law center at Stanford Law School, where he now teaches, and has launched Creative Commons, an ambitious project through which he hopes to establish a giant repository of works unfettered by restrictive copyright laws. In the realm of Internet politics and law, no one even approaches Lessig's stature. He is the chief theorist, the most respected mind, the most passionate speechifier. He is cyberlaw.
More than four years after his removal from the Microsoft case, the defeat, if you can call it that, still nags at Lessig. It is the opportunity missed. "Getting the appointment was a charmed thing," he says. "But I missed the chance to write the report. What I really wanted to do was get the right answer."
He had professorship, tenure, prestige. Then he discovered cyberspace.
On October 9, Larry Lessig will again claim a national spotlight.
In Eldred v. Ashcroft, his first argument before the Supreme Court and only his second appearance before any court, in any venue Lessig will attempt to convince the justices to overturn the 1998 Sonny Bono Copyright Term Extension Act. To Lessig it is both an opportunity to make up for losing the prize that was snatched from him some four years ago, and a giant step in his crusade to stop a trend he fears may be inevitable: big-media dinosaurs controlling the Internet.
That's why the law professor has declared war on Mickey Mouse.
It is the third of July in Cambridge, Massachusetts, and in a few minutes Larry Lessig is going to tell us how bad things are. Outside it is sweltering, but in Langdell Hall, where the Berkman Center of the Harvard Law School is holding a weeklong seminar, it is comfortably air-conditioned. Sitting in the corner of the lecture amphitheater each seat wired with power plugs and Ethernet ports he feverishly pecks on his Titanium laptop. He's wearing a checked Gap shirt and his trademark black jeans. Lessig looks like an intellectual. At 41, his face has the soft pallor of a life spent out of the sun. His features gather toward the center of his face, a configuration accentuated by tiny, Rumpole of the Bailey wire-rim glasses that barely cover his eye sockets. But Lessig's most distinctive feature is a startlingly high forehead; it's almost as if, in an attempt to accommodate his brain, the top of his head was pulled up a couple of inches, like an image stretched by Kai's Power Tools.
Normally, Lessig is a private, even shy, person. His students once asked him to tell them something about himself. He responded with one word: No. Before an audience, however, Lessig becomes electric.
"I was blown away," says Harvard Law's Charlie Nesson of the first time he saw Lessig teach. "He had the ethos, the spirit, the logic, and a Zen quality that goes right to the button." At times, Lessig seems more poet than lawyer. He isolates key phrases, repeating them, stretching them out, and luxuriating in their sound. Punctuating his themes are his distinctively styled PowerPoint slides that he creates using an obscure typewriter font downloaded free from a company called P22.
Today, Lessig is talking about the regulation of speech. He considers naive those who believe that the very existence of the Internet ensures free speech. That may have been part of the original Net code, he argues, but regulation may well disable that code. The freedom of the Internet didn't do much for Napster, did it? We may snicker that Congress is clueless, and chortle over the follies of record labels trying to catch up to the digital world. However, their laws and lawsuits have the potential to ruin the most idealistic aspects of the Net. Lessig believes it's already happening.
He is famously pessimistic about this trend. He has even referred to such pessimism as "my brand," joking that his agent has congratulated him for enhancing his brand identity with a perpetually bleak outlook. He calls it as he sees it, and when it comes to the Internet, his vision has proved sharper than anyone's.
It's not just a vision he's promoting it's a cause. His speech and his slides tell his Harvard audience the story of a valued commons of ideas threatened by big powers. The vast majority of intellectual property used to be in the public domain; now most is available only by permission. He takes particular delight in singling out the Walt Disney Company as the symbol of how the past is using its power to kill the future. The company was a major lobbying force behind the Sonny Bono Act, the law that Lessig is urging the Supreme Court to overturn. The measure was only the latest extension of copyright which the Constitution explicitly dictates should be "limited" from an original 14 years to an automatic 70 past the death of the creator. Most notably, the law protects Steamboat Willie, the first Mickey Mouse cartoon, from slipping into the public domain. (Lessig shows a clip of it in his PowerPoint presentation fair use, one assumes.) The big problem, as Lessig sees it, is that continual extensions of copyright prevent anything new from entering the public domain. This is most ironic, notes Lessig, since Disney dredged the public domain for its most lucrative properties. A PowerPoint slide lists the examples, from Snow White to The Hunchback of Notre Dame. Because of the Bono Act, Lessig asserts, "no one can do to Disney as Disney did to the Brothers Grimm."
The Berkman crowd is predictably appreciative, but being lawyers, they don't get as rowdy as, say, the Usenet conference Lessig spoke to a couple of weeks before. "That was the first standing ovation I ever had," marvels the professor. And it wouldn't be the last. As the Eldred case approaches, Lessig has embarked on a sort of barnstorming tour of conferences and seminars around the world, inveighing about Hollywood's "insane rules," upbraiding like-minded geeks for not taking action, and advocating a "million-bit march" on Washington to urge politicians to understand and embrace intellectual property rights. As he neared the end of his tour, Lessig was frustrated. They stand and applaud, he told himself, but why don't they fight?
A couple of weeks earlier, I'd asked Lessig a slightly different question: Why do you fight? The very question propelled Lessig who seems to casual observers so able and confident that he can resolve even the knottiest dilemma with a built-in Occam's razor into a surprising bout of self-examination. But for a chronically straight arrow, Larry Lessig has always had a flair for surprise.
Lessig was born in 1961 in South Dakota. His father, Jack, was an engineer, and helped build silos for Minuteman missiles. Within a few years, the family moved to Williamsport, Pennsylvania, where Jack bought a steel-fabricating company. Larry remembers Williamsport as "a tiny town not tiny in population, but in its understanding of the world." Jack Lessig was doggedly traditional, and moral in a way that would have won Ayn Rand's approval: Once, when he underbid a job, he refused to change the assessment and performed the work at a loss. The family was churchgoing, law-abiding, and above all, faithful to the Grand Old Party. "I grew up a right-wing lunatic Republican," says Lessig.
As early as anyone can remember, Larry Lessig astonished people with his intellect. His sister Leslie (he also has two half-siblings from his mother's first marriage) recalls him as a second grader, running through the list of American presidents backward and forward. Though he engaged in the usual smart-kid stuff stamp collecting, chemistry sets, a thing for Thomas Edison his passion was politics. Specifically, the right-wing lunatic brand of his father. In high school, Lessig was an avid member of the National Teen Age Republicans, and he served as the governor of Pennsylvania in the mock government formed by this cadre of future country clubbers. Everybody around him thought young Larry would one day be president. (That was when a correlation existed between the White House and intelligence.) After high school, he planted his foot in the political ring by running the campaign of a would-be state senator. It was the summer of 1980, and Lessig was the youngest member of Pennsylvania's delegation at the Republican Convention that nominated Ronald Reagan. His state senate candidate got creamed. "It was lucky," says Lessig. "If he'd won, I would now be a political hack."
Disillusioned, Lessig entered the University of Pennsylvania, where his father and grandfather had graduated. Thinking he would follow his father into business, he studied economics and management, earning degrees in both. Once he graduated from Penn, his intellectual path was forever altered. He went to Trinity College in Cambridge, England, for what he thought would be an extra year of coursework. He wound up spending three years there studying philosophy. "I just fell in love with the place," he says. "For the first time, I really felt like I was ... serious."
He also latched onto a different sort of politics. It was the height of the Thatcher Revolution, and Lessig found himself siding with the workers. "I remember going to Cambridge as a very strong libertarian theist," he says. "By the time I left I was not a libertarian in that sense, and no longer much of a theist." He was, however, passionate about freedom, and in particular excited about the prospect of liberty emerging in the former Soviet sphere. "I was obsessed with Eastern Europe and Russia," says Lessig, who hitchhiked through the area (and eventually became involved in its intrigues). Certainly, the Larry Lessig who returned from Cambridge was a shock to his family. "He came back a different person," says his sister Leslie. "His views of politics, religion, and his career had totally flipped."
After earning his master's in philosophy, Lessig decided to shift to something more, well, real. Years earlier, another relative of Lessig's, an uncle named Richard Cates, had given him a lecture on the law. Cates had worked as counsel for the House Impeachment Committee, and in the midst of the Watergate furor visited the Lessig household. "Of course, in our house you couldn't talk about impeachment," says Lessig. "But I remember he and I went for a walk and wound up sitting on this cliff, and he told me about what the law was." This is the only place where reason controls power, Cates instructed his nephew. The moment stayed with Lessig, and in 1986 he entered the University of Chicago Law School.
Lessig spent only one year in Chicago, though. His girlfriend at the time got a fellowship at Yale, and so he transferred there, something that was possible only because he'd wowed his profs in first-year law. The shift wasn't just geographical: Chicago is known as a school where lawyers learn law; Yale's rep is more ephemeral, a place where theories are valued more than the dirty work of contracts and litigation. No problem for Lessig. "He stood out as a brilliant, broad-ranging intellect," says Yale's constitutional law guru Bruce Ackerman. "The kind of depth Larry has isn't so common." Lessig particularly fell in love with constitutional law. He decided he wanted to write about it and teach it himself. At Lessig's graduation, Ackerman told a startled Jack Lessig that Larry was going to be a great professor. The father looked like he'd been struck with a two-by-four. ("He doesn't have a lot of respect for academic types," says Lessig. Now, of course, Jack couldn't be prouder of his celebrated son.)
In the postgrad pecking order, Ivy League law school superstars compete for clerkships with federal judges. Then the cream of the cream rises to the elite fraternity of Supreme Court clerks. After Yale, Lessig served Judge Richard Posner, the sharpest legal mind in the country. Says Posner, "He was terrific, a tremendous worker who had a ferocious intensity." The judge now considers Lessig "the most distinguished law professor of his generation." Lessig completed the legal-giant quiniela by clerking for Supreme Court Justice Antonin Scalia. "His clerks hated me because I was a liberal," says Lessig.
Bound by the Supreme Court's ironclad omertà against divulging in-chambers skinny, Lessig can't discuss his work on decisions rendered during the 1990 to 1991 term. But he can talk about his participation in one revolution at the high court. For years, he had been a computer nut after college he actually did some programming for a financial forecasting firm and, as an aficionado of good computer design, he despised the clunky Atex system then used by the Supreme Court Printing Office. So Lessig joined with a few other clerks to convince the Supremes to stop, in the name of user-friendliness. The high point of this effort was a demonstration for justices Sandra Day O'Connor, Scalia, and David Souter. Using Lessig's own Dell machine, the clerks staged a software shoot-out between Atex terminals and PCs running desktop-publishing software. Lessig and his colleagues won the day. But to implement a new system, complicated adjustments to some of the PC applications were required. Lessig wound up doing the job himself, hacking "extraordinarily complicated macros inside of WordPerfect." (Talk about code being law.)
After his clerkship, Lessig took the bar exam, then decamped to Costa Rica, where he spent a month reading 35 old novels on a beach blanket. He'd already been hired to teach in Chicago. As Ackerman had predicted, Lessig was on track for an incandescent career as a professor. He passed the next few years teaching constitutional law at Chicago and studying the political transitions in Eastern Europe, even helping the Republic of Georgia write its own constitution.
He had his professorship, tenure, and prestige. He was set for life. "I made it," he says. "That was all I wanted to do."
Then he discovered cyberspace.
On a walk in New York's Greenwich Village one afternoon in 1993, Lessig noticed a headline in the The Village Voice: "A RAPE IN CYBERSPACE." It was Julian Dibbell's account of a virtual sexual assault in a MUD. Lessig had recently read Only Words, a book on sexual harassment by Catharine MacKinnon (he'd taken a course with her at Yale), and as he read Dibbell's piece, Lessig was struck by how closely the concerns of the participants in the virtual world (devastated by "only words") resonated with those of MacKinnon, whose radical views (porn isn't protected speech) were generally considered anathema at the Voice. This suggested to Lessig that cyberspace was virgin intellectual territory, where ideas had yet to be boxed in by orthodoxy.
"It was a place where nobody knows their politics," says Lessig. He began thinking about the concept of law in this nonphysical space, and made notes for a course on the subject.
Lessig taught Law and Cyberspace as a visiting professor at Yale in the spring of 1995. That semester he had his first intuition about the relationship between code and the law. In the course of discussing searches and the Fourth Amendment, a student wrote a paper about how Internet worms could search someone's computer and then disappear. It made Lessig wonder how new technologies could shape law. His thoughts led to something that flew in the face of his students' near-drunken optimism about the Internet: Restrictive code, whether embodied in legal regulations or in computer programs, could trump the seemingly unstoppable freedoms delivered by the Internet. At the time, John Gilmore's exultant claim that "the Internet sees censorship as damage and routes around it" was widely accepted as truth. But Lessig began to think that it was less truism than wishful thinking. The right or wrong code could indeed implement censorship or surveillance or other injustices. "That insight," says Lessig, "became a central way of organizing the law of cyberspace."
Lessig began to develop his ideas into a book, and when he was offered a fellowship at Harvard in 1996, he decided to write it there. At the time, the law school's Charlie Nesson was beginning to organize the Berkman Center for Internet and Society, a branch of the law school devoted to cyberspace issues, and the administrator set his sights on hiring the field's first superstar. "We had to have him," says Nesson, who allocated half the center's $5.4 million initial budget to support Lessig as the Berkman professor. Lessig took the post in the summer of 1997 and was almost finished writing Code when, just before Thanksgiving, he got the call from Judge Jackson.
The formal appointment came on December 11. It was an unusual job and unusually important. As special master, Lessig was given the power to gather information independently, examine witnesses, and evaluate technical data, all with the authority of the court. Then he would produce his own report and recommendations, which theoretically would provide a blueprint for Judge Jackson's eventual ruling and remedy.
Microsoft objected, claiming there was no legal basis for such a role. "We felt that only a federal judge, appointed by the president, could make such determinations," explains Microsoft's general counsel Brad Smith. During the first conference call Lessig organized between the opposing parties, Microsoft's lawyers told the putative special master that they would not be cooperating while his role was under dispute. Lessig politely but firmly informed them that he had a job to do, and would proceed whether or not they argued their side of the facts. Bluff called, Microsoft quickly changed course.
"I like your spirit!" Judge Jackson faxed Lessig after that showdown. "You have the makings of a federal court judge."
Lessig held several more lengthy conference calls between the participants, each time asking for more technical information. Ironically, the same issues he was seeking to resolve like the effect of removing the Explorer browser from Windows are items of contention in the current iteration of the lawsuit, almost five years later. Certainly, Microsoft had the opportunity to have a neutral legal observer navigate the complicated technical issues at a depth that a judge could not attempt. Instead, the company chose to use every measure available to block Lessig's participation.
Specifically, it claimed that he was not neutral. The Softie lawyers recast Lessig's various writings about "code" as an anti-Redmond rant. (In one passage, Lessig compared the relatively open Internet Engineering Task Force to the "absolutely closed Microsoft Corporation." Microsoft claimed this was equivalent to calling the company "a threat to political freedom.") Then they introduced what seemed like a smoking gun: an old email Lessig had sent then-Netscape executive Peter Harter, asking if his copy of Internet Explorer was messing up the bookmarks on his Mac. Lessig had made a joke about installing the software, putting a quote in parentheses: "Sold my soul and nothing happened."
"So Microsoft winds up saying I should be kicked off because I use a Macintosh," explains Lessig. "But they're also talking about how my language about code is political code has values and they would fill their briefs with this, as if I was some lunatic crazy."
Because Lessig was bound by confidentiality, he couldn't speak out. "This was his professional reputation at stake, and he couldn't respond," says Harvard Law's Zittrain. When Judge Jackson ruled on Microsoft's challenge, he predictably dismissed the company's objections, making it a point to call their attacks on Lessig "defamatory." Microsoft appealed. Lessig filed an affidavit explaining that the "sold my soul" line was actually a riff on a Jill Sobule song. "Its meaning in context was not the confession of some profound 'Faustian bargain,'" he wrote. "It was instead a facetious response to an anticipated tease in an email between friends." Lessig also insisted that the passages in his writings about Microsoft in relation to his theories of "code" were similarly neutral.
For Microsoft, the proceedings were just business, as Tony Soprano says. Nothing personal. Even though the controversy is over, company counsel Smith won't go on the record to say that Microsoft dealt unfairly with Lessig. However, he does allow that Lessig "is a principled intellectual thinker" who does not "have an animus toward anyone or anything." (Meanwhile, Lessig has since developed a friendship with Microsoft chief technical officer Craig Mundie; they're co-chairing a panel on identity and cyberspace.) In theory, when the Court of Appeals removed Lessig from the case, the judges could have added a line to the effect that they looked at Microsoft's claims against Lessig and found them without merit. The fact that they didn't still rankles him.
"You know, the Microsoft case was such a gift, and the problem was so interesting and fun," says Lessig. "Not getting a chance to finish was extraordinarily frustrating. And not getting a chance to finish it in the context where lots of people thought I was kicked off because I was biased was doubly frustrating."
At any rate, the episode helped get Lessig's name out. Code was published in 1999 to wide acclaim. Before the book arrived, cyberlaw was an amorphous collection of ideas and issues that awkwardly transferred current laws and regulations to the supercharged new digital landscape. Lessig gave the field a foundation with his sweeping analysis. He argued that the very architecture of software applications and the Internet comprised a sort of legal system unto itself, one that could be altered by outside forces. "Larry looked at an extant debate and said, 'This is the wrong debate,'" says Zittrain. "Once you hear it, [his theory] is obvious." By providing a framework to look at how law applied to the Internet and new technologies, Lessig had, in effect, lifted cyberlaw from the practice of a disparate group of lawyers, representing hackers or toiling in intellectual property or coping with spectrum regulation, into a coherent field of study.
Lessig had mapped the battlefield. It didn't necessarily follow that he should become a warrior. But he did. "Code was an academic book," he says. "There's an argument about how cyberspace is changing and how commerce will change cyberspace. And there's a frustration with libertarians who are oblivious to the sense in which it's regulatable. But it wasn't yet a movement." Writing Code, though, planted the seeds for an activist approach.
One of the potential consequences of Lessig's architecture-as-reality argument was that code could wind up protecting intellectual property in theory, even to the detriment of free speech and conventional fair-use protections. Indeed, when viewing developments on the late-1990s Internet through that filter, Lessig saw that copyright holders were implementing such a system boldly and expeditiously.
"The things I was pessimistic about [in Code] happened more dramatically and quickly than I thought they would," he says. "What turned me into an advocate was seeing how the law was being used [to implement] an extremist conception of intellectual property. It was dishonest, in a certain sense, an overreaching corruption of a political system." The Napster case was a prime example: By shutting down Shawn Fanning's peer-to-peer music distribution network, the record labels had ended an infinitely promising experiment. To Lessig, it was the classic move of a dinosaur using its heft to stifle innovation.
A different dinosaur tactic now occupies Larry Lessig: the Sonny Bono Copyright Term Extension Act. Because of Disney's role in juicing Congress to pass the bill, some have nicknamed it the Mickey Mouse Preservation Act. To Lessig, the extension was a power grab, particularly troubling in the world of the Internet, where copyright is a bigger club than in the predigital world. (Simply reading something on the Internet involves copying it, and the movement of files can be tracked.) Lessig had originally been excited by the Internet's potential as a vast commons of shared information. The Bono Act was a prime example of how the law could starve that commons. Working with the Berkman Center, Lessig set out to challenge the law.
"Sold my soul," he joked about Microsoft. The email became a smoking gun.
But how would he frame it? The obvious way was to say that with its most recent extension, Congress had finally gone beyond any reasonable interpretation of what the framers could have meant by "limited." That approach hadn't worked in the past, so Lessig constructed a different argument. In Article 1, Section 8, the founding fathers not only instructed Congress what to do regarding copyright secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries" but also stated why they should do it ("to promote the progress of science and useful arts"). Of course, Lessig's complaint includes the idea that Congress' continual extensions make a mockery of the word "limited" (one professor called it perpetual ownership "on the installment plan"). But the main thrust of Lessig's argument rests on the fact that, as with previous extensions, the Copyright Term Extension Act not only grants new copyright holders a longer term of exclusivity, it grandfathers in previous works. A retroactive extension of copyright clearly violates the Constitution.
In Lessig's view, the wigheads in Philadelphia had laid out a bargain for creators of intellectual property: We want you to develop original art and science, so we'll give you an incentive a temporary monopoly on the use of your work. In theory, this means that Walt Disney would lay out the money to make a cartoon knowing that he'd have a certain number of years to collect the royalties. Yet granting Walt (or his heirs) a longer period for works created before most of us were born doesn't promote progress; Steamboat Willie is already here. Obviously, a retroactive extension can't provide an incentive "Gershwin isn't going to write any more music," notes Lessig. To the contrary, the cause of "art and science" actually suffers under retroactive extensions, because works that otherwise would have been returned to the public are kept in private hands.
Lessig's arguments are controversial. Intellectual property lawyers generally never considered them: The very basis of their universe is the assumption that Congress can do whatever it wants with the copyright clause. "I am a great admirer of Larry Lessig," says Jack Valenti, Hollywood's master lobbyist. "But Congress has the power to say what 'limited' is. It's there, it's unambiguous. Fifty-five men in Philadelphia decided it, and there's no way a court can overrule that." When Lessig went to his colleague Arthur Miller, he heard much the same thing: Of course Congress can do this. (Miller later wrote an amicus brief in defense of the law.)
Lessig's response is fairly unlawyer-like. "This is one of those issues where you're not permitted to disagree," he says. "There are a lot of issues where that's fair. This is not one of them. They're just plain wrong. I believe that if they weren't working for clients who had millions of dollars hanging on it, if we sat down in good faith and talked about it, they'd come around to seeing it my way."
So Lessig and Berkmanites Nesson and Zittrain put together a team to launch the challenge, including corporate attorney
Geoffrey Stewart. Stewart considered Lessig "a genius," but was surprised by his passion. "He wasn't out to make a statement, but wanted to win," he says.
The next step was finding a plaintiff, someone suffering harm by the extended copyright period and the abuse of the Constitution it represented. Actually, several would be needed, each absorbing a different blow from that abuse. Lessig and his team collected a stellar cast. There was Dover Publications, forced to scrap its plans to publish The Prophet and Edna St. Vincent Millay's The Ballad of the Harp Weaver (both prevented by the act from entering the public domain). There was a nonprofit group dedicated to preserving old movies. (Because early films are protected with copyright often assigned to owners who can't be traced there's no incentive to save them from the ravages of erosion, and they're literally killed by copyright.) A choir director at an Athens, Georgia, Episcopal church who relied on public-domain sheet music. Two publishers of historical works. But the most important among them would be the lead plaintiff.
The obvious choice was Michael Hart, founder of the Project Gutenberg. For years, Hart had been posting text files of public-domain books on the Internet; his online library was approaching 6,000 titles. When Lessig and his colleagues flew to Hart's hometown of Urbana, Illinois, to explain the case, though, Hart was adamant that the Berkman team's briefs integrate his manifestos attacking the greed of copyright holders. Anything less, he felt, would make him a mere "figurehead." Lessig wouldn't compromise: "Our view was that populist appeals are great, but you've got to frame a constitutional argument." Finally, Hart said, "Enough you can't use my name."
The Berkman team desperately cast about for another lead plaintiff. The answer was a 59-year-old former Unix administrator named Eric Eldred who publishes HTML-based works in the public domain from his cable modem-equipped house in New Hampshire. He wanted to use some early Robert Frost poems whose copyrights were due to expire until the Bono Act dictated otherwise. And so Eldred became a name that may one day join Roe, Brown, and other famous plaintiffs in Supreme Court decisions. The complaint was filed in January 1999.
The first round took place in the DC District Court before Judge June Green. As is the custom, Lessig and his team filed their initial complaint and gathered supporting complaints from lawyers who joined the litigation. Kathleen Sullivan, the dean at Stanford Law, advised them on a friend-of-the-court brief charging that the Bono Act violated the First Amendment by restricting access to speech without the special scrutiny required in such circum-stances. The government's brief countered that Congress is free to set whatever term it feels is appropriate, period. In October, Judge Green sided with the government, on the briefs alone. "I wasn't surprised she upheld the statute," says Lessig. "I was just surprised she did it without allowing an argument." Strike one.
The Berkman team took the case to the Court of Appeals later that year. This was the first and only time Lessig appeared in court on behalf of a client. "It was one of the better arguments I've ever seen," says Geoffrey Stewart. "He knew all the cases, and there was no point too grand or too trivial to escape his grasp. At a certain point, the level of questioning changed from a classic appellate argument to a dialog of genuine give-and-take." Lessig himself was pleased: "I was nervous before it started, but once it got going it was great fun," he says. The proof, though, would be in the decision: Since an ultimate victory would come only in the Supreme Court, a favorable ruling wasn't absolutely necessary yet if the decision unanimously upheld the law, there would be practically no chance the Supreme Court would agree to hear the case.
The verdict was 2 to 1 supporting the government. Strike two. Even so, Lessig got his dissent, from the most conservative judge. When the Berkman team asked the entire circuit to hear the case en banc, the request was denied 7 to 2, but they picked up another dissent, this time from a liberal judge. Those into reading legal tea leaves noted that such range made the case more attractive to the Supreme Court. However, most observers thought that the Supremes would leave it alone and thus were surprised when the Court granted cert to the case earlier this year.
I catch Larry Lessig for our last interview at his office at Stanford, his home base since leaving Harvard in 2000. (He's still an affiliate at Berkman.) Lessig explains that his wife, lawyer Bettina Neuefeind, wanted to move to the West Coast, and Stanford offered him a chance to promote his brand of activist cyberlaw by starting new initiatives. The beginnings of a mini-empire have sprung up around Lessig at Stanford. First he formed the Center for Internet and Society, a combination think tank and law clinic that handles and sometimes takes the lead litigating cases involving civil rights and issues of digital technology. With the Creative Commons, he hopes to provide a technological means through which content creators can publish their work unconstrained by current copyright restrictions.
It's an ambitious project requiring complicated protocols that let authors tag their works as publicly available and help readers locate and reuse those works. "It's a conservancy, like a land trust, where people can get access to content in the public domain that otherwise wouldn't be there," says Lessig. Will people flock in droves to give their work away? It's an interesting question; Lessig, who adores the open source movement, is betting they will. "I think it could be widely used," he says. He plans to spend most of next year getting the organization off the ground.
After the interview, we whiz up Highway 280 from Stanford to San Francisco in Lessig's two-seater Audi TT sports car purchased with his special master fees for an informal dinner with his wife. She is a former student (Lessig, ever the picture of probity, assures me there was no funny stuff until three years after her graduation) who works in Oakland representing low-income defendants in housing cases. It's a different kind of lawyering than Lessig's: If she loses a case, her client is on the street.
Which takes us back to the issue of why he fights. Sometimes, in his own dark way, Lessig notes the lack of gritty urgency in his own work, and questions his direction. In an earlier interview I asked him why, of all possible causes, in a world fraught with terrorism, hunger, and oppression, he has chosen to storm the ramparts for the cause of intellectual property. It's something he's asked himself frequently.
"This is the first time I have an answer. There are issues I think are deeply unjust about our legal system, outrageously so. You know, the legal system for the poor is outrageous, and I'm wildly opposed to the death penalty. There are a million things like that you can't do anything about them. I could go be a politician, but I just could never do something like that. But [cyberspace] was an area where, the more I understood it, the more I felt there was a right answer. The law does give a right answer."
Since that conversation, however, he's been working over the question and he's having doubts. Compared with his wife's involvement in the high drama of real life, what impact is he really making?
It's interesting that he's taking the question so seriously but totally consistent with his glass-half-empty approach to life. From the outside, it seems that Larry Lessig's existence has been privileged. Nice upbringing. Ivy League education, then Cambridge and top law schools. The best clerkships. Tenured law professor. And now an acclaimed author, speaker, and, ultimately, Supreme Court litigator. Yet he doesn't see it that way at all. "I always feel I should have been better at each of those steps. I bring to it this expectation that there's a lot more somebody else could have done."
"So far I've lost, lost at every level."
What about Eldred v. Ashcroft, where Lessig took a case that no one thought plausible and now has it before the Supreme Court, with a chance to make history? Glass half empty. "So far I've lost," he says. "Lost at every level."
Still, those representing the dinosaurs of the old economy would be mistaken if they assumed that the introspection of the private Lessig in any way compromises the strength of the public Lessig. Fighting the government will be a mesmerizing speaker armed with the confidence of superior brainpower and a conviction that he's on the side of the angels. It was this belief that made his 278-plus hours as a special master a blissful idyll: Despite all the previous failed attempts to do so, Lessig felt he could see the right way out. And he feels it again now. "You know," he says, "going to the Supreme Court with this case I created this case is that kind of chance."
To anyone who's followed Lessig's brilliant career, the Microsoft episode is long over. But to the man himself, the legal boxes and loose-leaf binders he carried to Stanford are very serious baggage. On October 9, Larry Lessig will get his chance to finally leave it behind.
Contributing writer Steven Levy (email@example.com), the author of Crypto, profiled Stephen Wolfram in Wired 10.06.
Copyright © 1993-2004 The Condé Nast Publications Inc. All rights reserved.
Copyright © 1994-2003 Wired Digital, Inc. All rights reserved.