In Defense of Authors - A reply to Professor Lessig

In the October 11, 2008 Wall Street Journal, Professor Lessig wrote an essay continuing his attack on copyright. Professor Lessig criticizes copyright and yet copyright also supports open source software, jam-band music, fan fiction and a host of economic models in which artists encourage others to share in the collaborative process. His real complaint is that copyright does not compel such a result. His frustration is with media giants struggling to find appropriate policies to balance their economic interests with the good faith they owe to their audience. But as his article admits, the law already provides the necessary remedy in many cases.

A few years ago I taught about copyright at my son's elementary school class. After having all the students draw a picture or write a poem for one minute, the cards were sent around the room and other students were encouraged to "add" to the cards. While most had fun marking up their classmates cards, some were visibly upset that their work had been changed without permission. These children instantly understood the purpose of copyright.

The purpose of copyright is to encourage and support authors and artists -- providing them the economic return to make a livelihood. Academics like Professor Lessig (and myself) have the luxury to have university patrons to pay our salaries and allow us the ability to write without compensation. Most musicians, poets, playwrights, authors, painters, and filmmakers have no such support.

Without copyright we would return to an era of professional works funded only by patrons. How much more power would the media giants have under such a regime than they have now?

iTunes is the beneficiary of the litigation against Napster and Grokster. Legitimate business models will transform the business strategy but only if we continue to hold true to our constitutional tradition of promoting our artists and authors.

Needless to say, I could go on regarding this subject at greater length, which I have done in my legal writing, but the heart of my disagreement with Professor Lessig is not the need for a robust fair use or the importance of participatory copyright, but his instance that the law must demand all authors and artists submit their works to his sense of their property rights regime.

I allow unlimited copying of my academic work and substantial copying of my commercial books. But I should not demand all other authors do the same. I now how difficult it is for an independent filmmaker to raise the funds to make a movie; how arduous a task to find distribution; and how long the road to financial response. Let these people give away their works if they so choose, but do not suggest they have no rights to their labor.

The only thing worse than copyright -- is the unimaginative world we'd have without it.