on June 16, 2004
A free culture supports and protects creators. The internet has established the ability for thousands to participate in the building and cultivation of culture. Laws regulating intellectual property have been laws against piracy. Copyright law regulates both republishing and transforming the work of another.
Disney's great creativity was built on the work of others. In 1928 the average term of copyright was thirty years. Today public domain is presumptive only for work created before the Great Depression. In the world free culture has been broadly exploited. Japan has a huge market of knock off comics and does not have many lawyers.
We celebrate property but there is plenty of value not subject to the strictures of property law. George Eastman created roll film and the upshot was the era of mass photography. The real significance was not economic but social. Now the internet allows creations to be shared, web logs, blogs, have grown dramatically. Blogs are a virtual public meeting. They are unchoreographed public discourse. Bloggers are amateur journalists.
John Seely Brown of Xerox believes we learn by tinkering. Recording music, radio, cable TV all were technologies involving forms of piracy. The piracy problems were solved by legislation. Peer to peer sharing was made famous by Napster. It is not clear that the file sharing has caused the decline in the sale of CDs.
In 1710 the British parliament adopted the first copyright act. In the last three hundred years the concept of copyright has been applied ever more broadly. The copyright law was a limitation on the power of book sellers. A decision in 1774 in the House of Lords held the limitation in the Copyright Act set forth the notion of a Public Domain. The common laws right of a publisher's monopoly was broken.
A documentary film maker could not rely on the fair use doctrine in showing a short glimpse of THE SIMPSONS in an employee break room. The author claims that Jack Valenti analyzes intellectual property improperly. In 1790 Congress enacted the first copyright law. In 1976 the law changed the scheme and for all works created after 1978 there was only one copyright term, the author's life plus fifty years. For corporations the term was seventy-five years. An amendment to the law extended the term for an individual to ninety five years. Copyright protects derivative uses also.
Technology researchers have been warned they may be in violation of the Digital Millennium Copyright Act. Technologies of the internet are open to snoops as well as sharers. The change in concentration and integration of the media is cause for concern. There should be an evaluation of the loss of independence. The author cautions that in the case of internet technology a land grab is taking place. Currently there is a widely punitive system tending to stifle creativity. The author believes that a reasonable balance between opposing interests in the area of intellectual property has been lost.
on May 22, 2004
In a world dominated by "ideas" (images, sounds, text, drugs, algorithms, etc.), it is (perhaps) surprising that the ongoing struggle over the control of "intellectual property" has essentially no presence in the public consciousness. Knowing perhaps a little more about copyright than the average newspaper reader, I found Free Culture eye-opening and occasionally shocking.
Lessig provides a very readable overview of the issues and history surrounding copyright, including an inside look at his efforts to have the Supreme Court rule Congress' continual copyright extensions unconstitutional (Eldred v. Ashcroft). The strength of Free Culture is the anecdotes it presents, from 18th century publishers trying to keep Shakespeare out of the public domain to a modern corporation trying to keep Mickey Mouse out of the public domain, with minimal bias but the clear message that things are going wrong.
Lessig falters when proposing solutions to the current crisis, which are weak and/or underdeveloped. He also occasionally displays his loony-left politics with misplaced analogies; I found his references to gun control and the war on drugs especially out of place, even misleading.
While Free Culture is weak in spots, it may well change the way you think about intellectual property.
You can even download the book for free!
on May 16, 2004
Lawrence Lessig's "Free Culture" is nothing short of brilliant. It outlines an incredibly important modern problem that is lost under the noise of more pressing concerns like the war in Iraq or corporate scandals. That problem is the loss of our culture at the hands of intellectual property law. And what that problem lacks in immediacy and prime-time-worthy sex appeal, it makes up in long-term consequences.
Lessig does a formidable job of making the issue come alive for both experts and laymen with his use of anecdotes that clearly illustrate how the ever-growing term and scope of copyright have stifled creativity and shrunken the portion of our culture in the public domain. He shows how the content industry is trying to redefine IP as the equivalent of tangible property, when it is not and has never been, and how that industry has manipulated Congress and the Courts to get closer to its goal.
If you followed the Eldred v. Ashcroft case (like I did; I was lucky to be at oral argument before the Supremes), you'll want to pick up this book for Lessig's inside account. Most of it is a mea culpa for not realizing that the Court didn't want a constitutional argument, but a consequentialist one. I'm not sure this would have made a difference. The Court's right, who, like Lessig, I thought would chime in for a strict reading of what is clear language of "limited times" in the Copyright Clause, must have had some special reason for turning their backs on their originalist rhetoric and I doubt that a political argument would have changed their minds. I still can't understand what that reason might be, and I refuse to believe it's just the dead hand of stare decisis that gave Scalia pause. Lessig is obviously very upset at that Justice; while he does mention having clerked for Judge Posner, Lessig doesn't mention in his bio (neither in the dust jacket nor the back pages of the book) that he clerked for Scalia in 1990-91.
One curious thing about the book is that throughout it Lessig implies that he is a leftist and that the ideas he is advocating are leftist. He patronizingly writes at a couple of points that he would be surprised if a person on the right had read that far. I think he is selling himself-and conservative readers-short. In fact, there is very little in the book incompatible with a conservative or libertarian free-market viewpoint. Private interests using the power of the state to distort the market and quash their competitors, and an originalist Jeffersonian interpretation of the Constitution as the response are very conservative themes indeed.
But it's not all agreement. I, like most free marketeers, will object to parts of Free Culture. Foremost among them are Lessig's concerns about media concentration. The fact is that there are more options today in television and radio than 20 years ago, and the the explosion of Internet sites and blogs, which Lessig spends most of the book lauding, belies the idea that news can be controlled. And it is interesting that Lessig seems to understand this. He says that he has seen concentration only as market efficiency in action, and that only recently has he 'begun to change his mind'. His skepticism is reflected in the fact that he only dedicated a small section (7 pages) to the issue. Another point of contention will be some of the solutions he proposes. While I applaud the idea of shorter terms that must be renewed with payment of a token fee, compulsory licensing and fees paid out by the government out of general revenues is beyond the pail. Won't such mechanisms be ripe for corporate manipulation as well?
Still, small quibbles aside, this book beautifully puts the IP issue in perspective. Everyone is touched by copyright whether they know it or not. This book shows us how the future of our culture is a dark one unless we change course soon.
on June 4, 2004
About halfway through "Free Culture" author Lawrence Lessig offers his most arresting example among many to illustrate his main arguments. That example - or set of examples - comes from Adobe's eBook Reader. When using this particular piece of software to read a downloaded electronic book, you are given a set of "permissions". These include how many times you can copy from the book to the clipboard, how many times you are allowed to print selections from the book, and how many times, if any, you can have your device "Read Aloud" the book. (Other eBook readers have similar characteristics, and Lessig is quick to absolve Adobe of fault.)
This represents one case of how technology allows content providers to introduce new restrictions that have no basis in copyright law or practice as it existed until recently. The Adobe eBook Reader allows such providers to limit even "fair use", or any use, even for books that are not in fact copyrighted. Congress and the courts have however been quick to provide shelter for this increasing control garnered and enforced by content owners. These and other trends lead to Lessig's main point: "the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law."
As evidenced by the preceding quote, Lessig's language is seldom extreme, although the instances he cites and the conclusions he draws are truly alarming. He lays out his case in a methodical, always interesting, and frequently entertaining approach. He begins historically, leading us through the record of how we and the courts have defined "property" and "property rights", particularly as they apply to intellectual and cultural property. He demonstrates how, in the U.S., almost every segment of the media industry began with "piracy" of some sort. He cites how, until now, the decisive judgments by the courts in cases dealing with such "piracy" have almost always been in support of, ultimately, the "free" dissemination of culture.
Essential to Lessig's story is the specific history of copyright law. In the U.S., the first such law in 1790 established a copyright term of 14 years, allowed for only one renewal (also for 14 years), and required registration. With the passage of the "Sonny Bono Copyright Term Extension Act" (CTEA) in 1998, we now have an effective term of 95 years, renewal is essentially automatic, and no registration is required. (One of the most compelling sections, although not critical to Lessig's overall narrative, is how he unsuccessfully argued in the Supreme Court against CTEA.)
As "Free Culture" demonstrates, even more effective than recent Congressional action in stifling cultural dissemination have been the efforts of people and groups such as Jack Valenti, president of the Motion Picture Association of America (MPAA), and the Recording Industry Association of America (RIAA). The author shows that their favorite weapon is the harassment suit that overwhelms the defendants' fiscal ability to respond. Valenti and the MPAA sued to outlaw VCRs (luckily Sony did have the wherewithal to defend itself). The RIAA sued the Girl Scouts for singing around the campfire. And the two groups combined to spend about $1.5M in lobbying leading up to the passage of the Sony Bono Act.
Lessig closes with some very specific and detailed proposals of how we can fight these increasing incursions on the free spread of culture.
This is a valuable and necessary book. For the most part, it is lucidly argued and engagingly written. The examples, metaphors, and illustrations are plentiful and right on the mark. The flow of the book has, I think, just two lapses that, while perhaps obscure, may interfere with a reader's ability to follow Lessig's logic at critical junctures.
One such lapse is that he does not clearly maintain the distinction between digital, Internet-based technologies for cultural dissemination and those non-digital ones which will live on. His arguments in the first half of the book seem to suggest that he believes that "hard-copy" media will eventually disappear, or at least that all new works will, at some point, be produced only via electronic means. I doubt if this is precisely how he envisions the future; he needs I think to clarify how he sees the distinction playing out.
The second lapse is this. The ability of big media conglomerates to recruit the courts and copyright law to their side is based on a legal determination that, as Lessig puts it,"each use of the Internet produces a copy." He glides over this point without fully explaining how that is so. Since it is so vital to the whole structure of how the law deals with the Internet, and since it will seem counter-intuitive to many, it would have been helpful for the author to have fully explained it and to have done so early in the book.
Media conglomerate attacks on music-sharing, campfire-singing, and movie-sampling may seem entirely justified to many. "Free Culture" sees and presents clearly the kind of constricted cultural future this might well lead to. My favorite passage is when Lessig writes: "lawyers are rarely empirical." Lawrence Lessig is a lawyer, and he has written a very empirical book.
on April 8, 2004
Crearly and engagingly written, this book not only illustrates how existing media companies fight innovation to keep themselves in control, but also inspires with the possibilities that are available if we find a way to overcome the resistance of the incumbents. The book is eye-opening in terms of history of copyright, intellectual property, US constitution (I didn't know it discussed intellectual property, but it does!), emerging technologies, and the future. The book shows how a commmon perception of copyright being private "property" of a creator is historically incorrect and socially un-desirable. A very worthwhile read.