A Lessig Critique Edward Rothstein has a critique of Lessig's copyright crusade in yesterday's New York Times. I wish the website gave more information on exactly who Mr. Rothstein is. Whoever he is, he seems to be taken with hyperbole and misstatements:

For example, at the end of his piece, Mr. Rothstein states that, "As it turns out, the extension of 20 years means that copyright law has held off for a while what will be a large-scale entrance of television and movies into the public domain. In the meantime, the absence of a public domain has not hampered creativity in either medium." While I have a number of problems with this statement, I'll limit myself to four comments: 1) How does "television" enter the public domain? 2) There were television programs in the 1920s? 3) What about books, music, artwork, etc.? 4) Whether or not creativity in either medium has been hampered is debatable. But in any event, Mr. Rothstein admits that, "Even Disney had to purchase rights to 'Winnie the Pooh.'" What about the non-Disneys that can't afford to purchase rights to Winnie the Pooh? Isn't it safe to say that their creativity is being hampered?

"But the public domain is larger now than in 1928, not smaller, and the continuing influence of copyrighted works should not be underestimated." Yes, works have been added to the public domain that weren't there in 1928. But Congress has allowed copyright owners to prevent any works from falling into the public domain since 1962 (except for those works the copyright owners chose not to renew, and which were published before renewal became automatic). Nor has "Steamboat Bill," the original inspiration for "Steamboat Willie," fallen into the public domain, since the Sony Bono Copyright Extension Act retroactively extended copyrights on all works created after 1923 for an additional 20 years.

"In fact the 1998 law Mr. Lessig challenged was intended to match the kinds of copyright protections already offered by the European Union." Then why, Mr. Rothstein, is the European Union now seeking to increase copyright terms, and saying that it's necessary in order for European copyright terms to match U.S. copyright terms?

Finally, I find it highly ironic that Mr. Rothstein cites the publication of "The Wind Done Gone" as proof that fair use allows for parodies on the order of the original Steamboat Willie, since the publishers had to fight the Mitchell estate all the way up to the Eleventh Circuit to even get the work published. Is that something the average person could afford to do?

Now, this is not to say that a compelling critique of Lessig's ideas isn't possible. But Mr. Rothstein's arguments are not such a critique.