Eldred
When I read what Lessig wrote this morning about the Supreme Court's decision in Eldred v. Ashcroft today, I thought of what Rabbi Joshua says in Avot D'Rabbi Nathan when he sees the ruins of the Temple:
oi lanu al ze she-hu charev!
(Alas for us that it is ruined!)
Rabbi Nathan goes on to report that Rabbi Yochanan ben Zakkai (Rabbi Joshua's teacher) answers "b'ni, al yera l'cha" (my son, do not grieve). I hope Professor Lessig's teachers are even now writing to him: b'ni, al yera l'cha.
Yochanan ben Zakkai argues specifically that Rabbi Joshua need not grieve because there are alternatives to the Temple service ("yesh lanu capara acheret", "we have another atonement"). What is Eldred supporters' "capara acheret"?
Surely it starts with cultural struggle to show people that the public domain, and all the public's rights in copyright, are valuable; that, as the Eldred dissents recognized, the copyright law properly aims at a public rather than a private end; that no one is intrinsically entitled to property rights in creative work; that, as Professor Litman argues, legislation by private negotiation is not serving the public; and that copyright significantly burdens expression, and that the fair use doctrine may not always be adequate to remedy the harm.
The capara acheret is also to support all the people who are working on the accessibility of culture, from librarians in libraries through free software programmers through "vernacular archivists" (as Stewart Brand says) and the creators and operators of the "databases" so celebrated by Justice Breyer's dissent. And its includes supporting technologists who make creative work easier and cheaper.
It is odd that so many people should feel so comfortable with a tax -- the retroactive part of the extension -- solely to the benefit of heirs and assignees, where the creators of the famous works at issue are typically dead and buried.
Id cinerem aut manis credis curare sepultos?(Aeneid IV, 34)
If you're feeling depressed about the Eldred decision, a little proofreading might cheer you up.
Having seen Larry Lessig argue this cause is one of the highlights of my life.
