AN INTERVIEW WITH INTERNET LAW EXPERT LAUREN GELMAN

Lauren Gelman, an attorney, is the Assistant Director of the Center for Internet and Society at Stanford Law School. Previously, Gelman was Public Policy Director for the Electronic Frontier Foundation, a nonprofit civil liberties organization dedicated to protecting individual rights online.

Gelman is also one of the organizers of a new, creative form of protest - involving a traveling bookmobile - relating to a Supreme Court case, Eldred v. Ashcroft, to be argued today, October 9. The protest is sponsored by the Internet Archive, a non profit online library and archive at www.archive.org. Its goal is to call attention to the diminishing reach of what is called the public domain - that is, the set of works that can be accessed freely, without payment or permission from the owner.

Gelman responded to written questions put to her by FindLaw columnist, attorney and author Julie Hilden (who also knows her socially). In the interview, Gelman discusses both the bookmobile project and the Supreme Court decision to which it is responding.

Q. What was the genesis of the idea for the Bookmobile project?

The Internet Archive has been involved in the debate over the future of copyright in cyberspace since its formation in 1995 by Bookmobile pilot and Chief Bookmaker Brewster Kahle. As a digital library, the Archive has a vested interest in making sure that the public is able to benefit from cyber-technologies without being stymied by outdated or overly inclusive copyright laws.

Unfortunately, the debate has focused on protecting content owners who favor locking up content. Focusing solely on what should or should not be copyrighted relegates the value of the public domain to an afterthought, the remainder. The Bookmobile is a means to convey and showcase the tangible, inherent value of the public domain. Without the public domain, the Internet Bookmobile's virtual shelves are bare.

That said, the Bookmobile is also quite cool. A mobile digital library traveling around the country downloading, printing, and binding copies of Alice in Wonderland and The Wizard of Oz and giving them free to kids. Who could pass up an opportunity to implement that vision?

Q. What will happen when the Bookmobile reaches its destination at the Supreme Court on October 9?

It will make free public domain books.

Inside the Supreme Court, the justices will be hearing arguments as to whether any new books will enter the public domain for the next twenty years. Outside, the Bookmobile will be downloading, printing, binding, and giving away for free copies of public domain books.

With mobile access to the public domain, a child can have Alice in Wonderland delivered right into their hands or an elderly man can have any public domain book printed in 16- point type. The issue: Do we value the public domain as a public good worth protecting in its own right?

Q. Can you please describe what is at issue in Eldred v. Ashcroft? Also, could you please explain why the Internet Archive believes the Sonny Bono Copyright Extension Act is unconstitutional? And what, in brief, is the argument on the other side?

At issue in Eldred is the scope of Congress' power to extend the copyright term. The Constitution states that Congress' power to grant exclusive copyright protection to content owners is for a "limited" time, and that this power is for the purpose of promoting science and the useful arts. The Sonny Bono (or Mickey Mouse) Copyright Term Extension Act (CTEA) extended copyright by 20 years. Under this law, copyright owners control their work for their lifetime plus 70 years; when the Constitution was enacted, copyright protection was for fourteen years. Copyright has been extended 11 times in the last 40 years.

Eldred is arguing that the continuing extensions belie any argument that the term is "limited" and that lifetime plus seventy years is well beyond what is necessary to promote science and the arts. The Internet Archive filed an amicus brief in the case arguing that the continued extension of the copyright term harms archives and libraries that depend on public domain information to fill their shelves. The Archive believes it is imperative that copyright law balance the important needs of creators to be paid for their work, with the ability of the public to access works through the public domain.

Q. As an expert in Internet law, what developments do you think we can expect to see in the future with respect to public domain works and other free content on the Net? What about with respect to the open source movement?

Copyright law is currently being developed that promotes and protects Tom Cruise, Brittany Spears, and John Grisham's interests and will surely make them rich and incentivize them to create. However for most other artists, the new laws mean less access to their works and less opportunities for them to build reputation. I believe that there will eventually be a shift in the direction of copyright laws to favor users, not because of the users' advocacy, but because the artists will want their voices heard, and will seek the tools to make that happen.

Open source, copyleft, and the creativecommons.org are such tools and I think we can expect their visibility to increase, especially if the default copyright regime continues to fail to meet their needs.