Copyright is supposed to serve, according to the Constitution, as an incentive for authors and inventors to publish their works, to make them available to the public. You have to look at what is the minimum incentive for them to do that so you don't also give them too much and spoil the balance of the copyright equation. Nobody is saying that there's a single author who refuses to publish because he didn't have [copyright protection] for 70 years after his death, instead of 50 years.

Now you both said that you were shocked to see that the Supreme Court took the case. Do you think you'll win, particularly with such a conservative court?

Bjorklund: I'm optimistic. Maybe I shouldn't be but I am because first of all, I think we're right. Second, this isn't a strict liberal-conservative issue. In fact, the dissent -- written in the appellate court when they upheld the lower court ruling -- was written by a judge who is apparently quite conservative. You can see this in a strict constructivist sense; this is what the [authors of the Constitution] meant and by golly, that's what we're going to do. And aside from thinking that we're right, the fact that four of them at least thought it was a worthwhile issue gives me hope.

Eldred: I think it's time for the Supreme Court, and I think they realize this now, to define the basis of copyright in the U.S. Instead of being based upon a natural-law principle like in Europe, it should be based on a utilitarian, social-contract kind of statutory right. They need to make it clear that the term of copyright is one thing that Congress can do to balance between the right of the public and the right of the copyright owners, and to give the right incentive to authors to create things.

Do you think this case has the power to shift momentum in the broader online copyright battle that's being waged? The content industries have been winning at every turn -- in the DeCSS lawsuits, against Napster and elsewhere. Do you think this case could alter the balance of power?

Eldred: I think so.

Bjorklund: I think it's going to do a valuable service if we can get some information out to the public about why this issue even matters. But I have to make clear that I'm not in favor of violating anyone's copyright. I don't even copy CDs.

Eldred: This isn't a Napster case.

Bjorklund: Exactly. It's not Napster. This is about the big issue of letting things fall into the public domain and not letting things be controlled by corporations forever. So I guess I see it in more of a legal and constitutional setting than through the hipper Internet angle.

Eldred: I disagree, Laura. I was really pleasantly surprised to see how the news media hopped on the Internet angle. I didn't really expect that. And Laura and I are both trying to use this case to raise the level of public debate about copyright because when this 1998 law was passed, there was absolutely no debate about this.

Bjorklund: Thanks to Monica Lewinsky.

This is obviously a cause that you feel passionately about, and Eric, you've compared it in the past to the environmental movement. But has the public actually rallied around the cause?

Bjorklund: We need more. But I'll tell you one thing: Everyone I've ever talked to on an individual basis about it says, "I've never really thought about it before, but it really is important."

I work primarily with genealogical and historical researchers and believe me, they're starting to catch on. Every time they find out that they can't get a 1950 copyrighted book and I can't find the authors or heirs, even if I want to pay them royalties, another consciousness is raised.

Eldred: I don't think this case is enough. I think there will have to be more. The DMCA is a bad law and needs to be overturned as well.

We're in the early stages of this. There are many things, like the Human Genome, and things in agriculture and all sorts of things that are going on, which need to be combined in the battle against strong intellectual property rights.

Bjorklund: That's a whole additional and hugely important aspect of it -- scientific discoveries and intellectual property and needing to get them freed from [corporate] control.

What would it take for this issue to gain the kind of traction that the environmental movement has?

Bjorklund: I could trot out a few of my weepy old customers who are going to go to their grave without getting copies of books that they're desperate to get.

I think it's never going to reach the environmental movement's status, but with persistent attention from the media, it can become a little more important.

Eldred: Well, looking back at the history of Linux and the Free Software movement, they've come a long way and I don't think anyone expected that. So I think we're still in the early stages and I'm quite hopeful that the Supreme Court will rise to the occasion of this suit and knock the corporations in the nose a bit. Then, we'll see a lot more debate.

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