Richard Posner, the honorable guest at Lessig Blog, has written a short piece about the Eldred decision. He is correct that Lawrence Lessig has "from time to time" self-flagellated about losing the Eldred decision at the Supreme Court. (See chapter 13 and 14 of Lessig's Free Culture.)
Frankly, I don't see anything dishonorable in feeling shame. Particularly when something happens on your watch, and Eldred did happen on Lessig's watch, shame is a noble feeling. It may have been better not to argue the case at all, as Lessig notes himself in his most recent book. So, I applaud Lessig for flagellating himself on this, at least for a while. In any case, he has now recorded his feelings in his book and can move on to more interesting stuff.
Now, let's stick to the actual issue Posner has mentioned.
First, I don't think anyone would argue with Posner when it comes to the importance of propertization as an incentive to the owner to conserve and nurture his or her property. In fact, it has been argued by many economists, including Nobel Economics Laureate Douglass North that secure propertization is essential to economic progress. (See here.) This has been well established by him and other economists who have written since the Second World War. (North has also made some other interesting, general points about the role of technology in economic development.)
Second, Posner is right when it comes to a relativistic interpretation of the "for limited Times" term in the Progress Clause of the Constitution. However, Lessig has also realized that fact. In his book, he has noted that insisting on a reasonable interpretation of "for Limited Times" in his arguments was not a winning strategy before the Court. Lessig says that he should have argued from the "Free Culture" point of view. In other words, he should have said that extending limited terms is harmful to basic freedoms in our culture. However, I think even that argument has some flaws in it. First of all, no culture is truly free. We all live with and are rooted in our pasts. If any institution in the U.S. government knows that fact well, it should be the Supreme Court. So, emphasis on "free," instead of on "roots" might not always work with the Court.
Last but not least, copyright term extension beyond a certain point, as Lessig has analyzed so skillfully, promotes the death of culture much more efficiently than it stifles free culture. (That is why I think Lessig should have chosen a different title for his book but it could have become too dramatic. I don't know?)
Death of culture through repeated copyright extensions going well beyond three or four generations happens in several essential ways.
- Only "cultural" products for which current economic value can be extracted are protected and nurtured into prosperity.
- With continuing copyright term extension, many pieces of potentially valuable cultural works that are not currently and commercially active remain silent and could be lost to history because it costs more to clarify their copyright status than can be earned by making them available to public, either directly or through "mixing" in other cultural products.
- Continuing copyright term extensions also prevent active mixing of the past into the future. If copyrights are allowed to be extended beyond a certain point, going for more than three or four generations as the case may be, it becomes increasingly more problematic to do such cross-generational mixing of cultures beyond what is made available through commercially active culture. That's the true loss.