Roberts v. the Future

Busy week, so I didn't get to last Sunday's NY Times Magazine cover piece until today. Jeffrey Rosen had a brilliant piece on what kinds of issues the Supreme Court may well confront over the next generation and the kinds of cases that may come before Justice John G. Roberts Jr. (At this point, I part with my ideological friends at MoveOn and support Roberts' nomination, not because I like his politics -- I don't -- but because I think presidents should have wide latitude in making appointments to the High Court.)

Rosen looks at questions of genetic screening, abortion, reproductive cloning, affirmative action, privacy rights -- and No. 6: Property, Free Expression and the Right to Tinker. He quotes Larry Lessig, Edward Felten and Jamie Boyle in the section. Excerpt:

during the next decade or two there may be other, less familiar legal debates over the scope of rights involving private property -- in particular, the ability of corporations and entrepreneurs, through the use of copyright and patent law, to control a broad spectrum of intellectual property, from digital entertainment to genetic sequences.

As books, music and movies are increasingly distributed by large corporations in digital form, entertainment and publishing corporations are clamping down on the ability to access copyrighted material -- sometimes by persuading Congress to extend copyright protections and sometimes by devising ingenious technological ways to block users from making copies of the product. Many digital activists fear that free expression won't be able to thrive if people are deprived of the right to sample, remix and tinker in a world where every copyright infringement can be recorded, punished or technologically impeded.

The guru of digital activism is the Stanford law professor and cyberspace visionary Lawrence Lessig, whom I recently reached by telephone in Spain. ''As life moves increasingly onto the Net and the capacity to control every aspect of our cultural capital increases almost to perfection, the question will be whether there is an affirmative right of access, to use and remix,'' Lessig said. Three years ago, as the lawyer for an Internet publisher of works in the public domain, Lessig failed to convince the Supreme Court that the purpose of copyright law -- to promote creativity -- was undermined by the automatic copyrighting of all creative works for the life of the author plus 70 years (as it is after the Sonny Bono Copyright Term Extension law added 20 years to existing copyright protections.) Lessig argued unsuccessfully that the First Amendment is threatened in a world where artists, for example, must solicit permission from lawyers at major movie studios before using 10-second clips in their video art -- virtually a requirement in the current scheme. In 10 or 20 years, Lessig told me, the problem for digital activists will be copyright restrictions that are enforced not by lawyers but by computer code and digital-rights-management technology. These technologies can ensure that everyone who buys an electronic book or tune can copy it as many as five times, for example, but no more.

At the moment, copyright law contains an exception for ''fair use'' -- an artist or biographer, for instance, can quote briefly from copyrighted books or songs. But as movies, books, songs, games and the computers that transmit them are increasingly controlled by digital-rights-management technology, they might be made impervious to copying or sampling, even for the brief quotations that fair use now protects. Bloggers, for example, might find themselves technologically unable to cut and paste from future books.

''Imagine a world where 90 percent of the stuff you read and watch and listen to is on very high-definition screens,'' Lessig said. At that point, our ability to access books and movies and music online will determine the degree to which we can put them to other creative uses. ''When libraries loan books,'' Lessig continued, ''they don't make a copy, so it's not regulated by copyright, but when all content is in digital form and every use produces a copy and is subject to copyright law, there's an affirmative right that has to be asserted -- a right to access.'' Lessig told me that Congress might try to extend the terms of copyright yet again when the Sonny Bono Copyright Extension expires in 2019. He said that the only way to persuade a Roberts-era Supreme Court to strike down further extensions is to mobilize a political coalition in the country around the importance of digital free expression. ''You speak to conservatives by pointing to this extraordinary loss of resources caused by overregulation,'' he said, ''and you speak to liberals by pointing to the lost opportunities for creativity and free speech.''

Edward Felten, a professor of computer science at Princeton University, told me that he hopes in 20 years that Americans might be able to assert a newly recognized constitutional right -- rooted in the First Amendment -- to circumvent the obstacles posed by digital-rights-management technology. He calls it ''the constitutional right to tinker.'' Felten began thinking about the right to tinker several years ago, when he became aware of the legal complications that were increasingly cropping up in his own discipline of computer science. ''Researchers were worried about the possibility of legal threats from companies whose interests were affected by their research,'' he recounted ...