FC: Ayn Rand Institute denounces Eldred, Lessig as Marxists

From: Declan McCullagh (declanat_private)
Date: Mon Oct 07 2002 - 19:24:27 PDT

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    [I read the prohibition on sending this to the media as the Ayn Rand 
    Institute wish to control the republication as an op-ed piece in 
    newspapers, a not-unprecedented request. Background: 
    http://www.politechbot.com/cgi-bin/politech.cgi?name=eldred --Declan]
    
    ---
    
    Date: Mon, 7 Oct 2002 21:49:59 -0400
    Subject: Fwd: Ayn Rand Institute on copyright
    From: Scott Johnson <viruspublishingat_private>
    To: declanat_private
    
    I've been an avid "Politechnical" for a while and thought you might
    find this "interesting" ...Lawrence Lessig is a Marxist!
    of note especially is the prohibition of sending this to the media!? I
    think it's notable that the "Randists" (and Rand herself to a certain
    extent) have been known to use of copyright law to quell criticism in a
    manner similar to the Scientologists.
    
    
    --------------------------
    Begin forwarded message:
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    From: "Ayn Rand Institute Media" <davidhat_private>
    Date: Mon Oct 7, 2002  8:10:04 PM US/Eastern
    To: <Op-ed.listat_private>
    Subject: WOULD-BE INTELLECTUAL VANDALS GET THEIR DAY IN THE SUPREME
    COURT
    Reply-To: davidhat_private (David Holcberg)
    
    Op-Ed from the Ayn Rand Institute
    
    WOULD-BE INTELLECTUAL VANDALS GET THEIR DAY IN THE SUPREME COURT
    
    Those who are spearheading the current legal challenge to the copyright
    law favor intellectual cannibalism masquerading as creativity and free
    speech.
    
    By Amy Peikoff, J.D.
    
             In 1998 Congress, pursuant to its Constitutional power to
    determine the duration of federal copyright protection, passed a law
    extending the term of that protection by 20 years. This law brought
    United States copyright protection in line with that already afforded
    in
    Europe. In addition, as the average life expectancy in the United
    States
    now exceeds 70 years, the law brings copyright protection in line with
    the legal vehicle for the posthumous control of tangible property--the
    law of testamentary trusts, which bases the term of such control on a
    human lifespan.
    
             Despite the reasonableness of this law, Stanford professor
    Lawrence Lessig is spearheading a legal challenge to it, culminating in
    his argument before the Supreme Court this Wednesday. Lessig, who seems
    to have become, in the words of New York Times writer Amy Harmon, "a
    rock star for the digital liberties set," is expected to argue that the
    law is "overly restrictive of the free-speech rights of would-be users
    of copyrighted material that previously would have been in the public
    domain."
    
             In recent decades we have already seen the "right to free
    speech" extended to mean the "right" to be provided with a free
    platform
    for one's speech. Anyone who dares to be successful enough to own a
    property where the public enjoys gathering--e.g., a shopping mall--is
    for that reason compelled to allow people to speak on that property.
    "Free" speech thus means: free of any need to earn one's own physical
    instrumentalities or audience, or even to pay for the right to borrow
    someone else's achievements.
    
             Lessig would have the Supreme Court extend this perversion of
    free speech to mean: free of any need to pay for the borrowing of
    someone else's greatest achievement: original thought. Or worse: free
    of
    any need sufficiently to digest that original thought so as to be able
    to put it into one's own words. Appropriating and parroting the
    creation
    of others is now, according to Lessig, "free speech."
    
             Lessig and his allies try to downplay what they are doing by
    making it an issue of finances. They say things like, "the copyright
    law
    used to restrict only big business, which is fine--but now it restricts
    anyone who has access to the Internet." "Only 2 percent of works
    protected by copyright," they go on, "create a regular stream of income
    for their creators." Translation: only a small minority of "non-little"
    people will be hurt by repealing this law, so why not do it? This
    attack
    on money, success and big business--no doubt another symptom of the
    "Enron" era--is shameful and Marxist. How is the Court, as Lessig
    demands, to "balance the interests" of original thinkers against those
    for whom "creativity" consists of cannibalizing--and even
    vandalizing--the products of others' thought?
    
             The government is expected to argue--properly--that the Supreme
    Court cannot arbitrarily impose a definition of "limited times." In
    other words, the power to set an appropriate time period for copyright
    protection lies with Congress. Congress has clearly been reasonable in
    its exercise of that power.
    
             The other main argument offered by supporters of the 1998 law
    is
    that, in the long run, the law will promote creative work, and thus the
    national welfare, by offering higher profits to those who invest in it.
    This argument--based on the "public good" standard--is intellectually
    bankrupt and doomed to failure. Opponents simply counter that more
    creativity will be fostered by allowing people to obtain and build upon
    existing works. Many "conservatives," such as Milton Friedman, use the
    same "public good" standard to argue that the incremental economic
    payoff provided by the 1998 law is not significant enough to encourage
    creativity.
    
             Anyone who raises the standard of the "public good" in this
    context had better be ready to have his rights in any field adjudicated
    according to the latest iteration of Jeremy Bentham's utilitarian
    calculus. In practice, this means according to the premises,
    preferences, and whims of the judge sitting before him.
    
             An artist or intellectual is often not only or even primarily
    concerned to reap the monetary benefits of his works; in addition, he
    wants to be sure that the integrity of the work is protected against
    mutilation as long as possible. This is especially true if the work
    conveys an important artistic or philosophic message. If those in the
    "digital liberties set" plan to have a field day with others' works of
    creative genius--bastardizing them into whatever fragments they find
    appealing, adding any distorting content they choose, then blasting the
    results all over the internet--what is the point of trying to convey to
    the world one's own vital viewpoint? What is the reward offered for
    trying painstakingly to create one's vision of truth or of the ideal
    universe, and to invite readers to share in it, if our nation's highest
    court gives Lessig's gang a formal sanction to practice intellectual
    vandalism on the finished product?
    
    _______________________________________________________________________ _
    ___________________________________________________
    Amy Peikoff, J.D., is a senior writer for the Ayn Rand Institute in
    Irvine, CA. The Ayn Rand Institute promotes the philosophy of Ayn Rand,
    author of Atlas Shrugged and The Fountainhead. Send responses to:
    reactionat_private
    
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