A Mirror on Congress: Lessig vs. Conyers

My quick post Friday night on John Conyers' response to Larry Lessig prompted some pushback from the Lessig camp. At issue: H.R. 801, the Fair Copyright in Research Works Act -- a bill that Judiciary Committee Chairman Conyers has reintroduced for the 11th Congress that would prohibit federal entities from requiring anyone who conducts government-funded research to place a copy of the resulting work in the public domain. (There's a stipulation that limits the provision to "extrinsic work" in which a third party adds some value to the final product, but conventional wisdom says that the journal peer-review process counts as a contribution and triggers the restriction.)

The target, really, is the NIH PubMed Central program, that was passed through
the House Appropriations Committee in 2007. Copyright is Conyers' turf, and that the bill bypassed Conyers' "sacred jurisdiction"seems to have really stuck in his craw. But there's a strong counterargument made by open-access advocates like Peter Suber that PubMed Central and similar projects have nothing to do with copyright, since the author's rights are respected from start to finish.

All that legislative substance and process, though, is a bit beyond the scope of our sacred jurisdiction here. Let's return to what's not: transparency in government. Underlying this conflict between Lessig and Conyers is an interpretation of government-supplied data. And its application is exactly the sort of thing we spend a lot of time discussing around these parts. The law professor's opening salvo against the congressman drew on fundraising data to make the case that Conyers was "shilling for Big Paper."

An analysis by MAPLight found that publishing interests gave an average of $5,150 to H.R. 801's five co-sponsors and an average of $2,500 to its 34 non-allies on the Judiciary Committee. Conyers reacted strongly to the implication, charging that Lessig's accusations "cross the line."

The gist of my post Friday was that what we're witnessing is a defining moment. Having spent hours this weekend digging into the details of Lessig vs. Conyers, that seems to me more true than ever. It's a tough point to articulate, but it's worth attempting, I think -- however inartfully it comes out for now. It has to do with a shift in thinking about Congress, from a collegial, human-driven body to a bloodlessly transactional institution. You give me cash, and I give you access. You see in the vehemence in Conyers defense of his bill that that runs entirely counter to how he thinks of himself and his work: "[O]n the basis of this one piece of legislation he dislikes, Professor Lessig is willing to wave away my forty years of fighting against special interests." His pride in himself and his work is wounded.

Humans are complex creatures, whether they've won elections or not. What our motivations are (or what our boss's motivations are -- an important factor when it comes to Capitol Hill) aren't necessarily always crystal clear to us. Lessig sometimes gets accused of "not getting the Hill." I'd argue that the Hill doesn't always "get" itself very well. Using cold hard numbers to highlight possible cause-and-effect between a widely-reviled bill and the interests funding political careers is holding up a mirror to Congress and congresspeople. Conyers argues that that mirror is distorting. Lessig argues that it's an honest reflection. This may well be the first of many painful battles over the difference between those two ways of seeing things.