Free Culture vs. Big Media

Lawrence Lessig leads the charge to retake the public domain.

David Post from the November 2004 issue

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig, New York: Penguin Press, 240 pages, $24.95

Eight years ago in this magazine, I wrote about the "First Internet War": the Church of Scientology's use of copyright as a weapon against online critics who were circulating copyrighted material belonging to the church. (See "New World War," April 1996.) The case, I suggested, raised a series of "difficult and important legal issues that courts are likely to be struggling with for some time": How can copyright law, designed for the world of atoms, "take account of the strange features of this new informational landscape" in the world of bits?

Since then the questions have only become more difficult and more important, what with Napster, the recording industry's campaign against file sharing, the Digital Millennium Copyright Act, e-books, open-source software, open-access journals, TiVo, the Grey Album, and so on. Copyright law and copyright problems have gone mainstream; now everyone is thinking about copyright, and everyone -- save perhaps for the most hidebound record company executive, or maybe former Motion Picture Association of America head Jack Valenti -- recognizes that the technology is ushering us into a new kind of copyright space. But what does that space look like? What should it look like?

Enter Lawrence Lessig, who has transformed himself from a relatively obscure Stanford law professor toiling away in the academic vineyards into one of the best-known public intellectuals on the planet. Whenever talk turns to intellectual property and cyberspace, it seems, Lessig's name is invoked.

In Free Culture, his third and best book, Lessig shows his hand. He has a cause, and he wants us to rally to it. The cause is the protection of that imaginary piece of real estate known as "the public domain" and the "free culture" that has always, Lessig argues, been built upon and interleaved with it -- the culture of transformative art, of sharing and borrowing and reborrowing and retransforming, of collages, cover versions, dramatizations, fictionalizations, and adaptations -- the whole universe of ways new art builds upon and emerges from old.

It must be said that law professors usually do not make good rabble-rousers. Good rabble-rousers must engage the public's emotions. Law professors serve the goddess of reason alone, and she is a jealous mistress. Our arguments are too esoteric, our prose is too dense, we are too fond of abstraction and of argument for argument's sake, to rally people to fight under a common banner. The hyperrational discourse of the law school classroom and law journals is not, generally speaking, good training for populists.

Of course, bad rabble-rousers also engage people's emotions; when it strays too far from reasoned argument, rabble-rousing becomes demagoguery. It's a notoriously difficult line to walk, but when it is done well -- judged on the terms not of the academician's debate but of the public's -- it is honorable work. And in Free Culture, Lessig does it well.

Lessig succeeds in showing that "free culture" has always been a vibrant part of our intellectual heritage. There's not a musical phrase, a scene from a movie, or an essay on a blog that does not borrow something from earlier work. Scott Joplin borrows from W.C. Handy, George Gershwin borrows from Joplin, Igor Stravinsky and Miles Davis from Gershwin, Aaron Copland from Stravinsky and Davis, John Williams from Copland -- and a thousand would-be composers around the globe now try to sound like John Williams. Pick your art form. That's always the way it is.

Lessig makes wonderful use here of the greatest of all free-culture icons: Steamboat Willie, the 1928 Walt Disney cartoon that introduced Mickey Mouse and launched an empire. He shows that large chunks of the short were borrowed from, and played off of, Buster Keaton's silent film Steamboat Bill, Jr., which was itself borrowed from a song, "Steamboat Bill." As Lessig puts it, Disney "ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn."

This culture of creative borrowing exists, of course, in the shadow of copyright law -- mediated and regulated by the rules governing what may be taken from pre-existing works and the uses to which those works may be put. That's copyright's job: to give past and present authors a degree of control over the future uses of their work. It wraps up things that have already been created in a kind of protective shield, and it says to the authors of these works: You may stop people from doing certain things to your work, or you may condition their doing those things on the payment of whatever fee you deem reasonable.

Copyright does this for the benefit of the future. The point of protecting the current stock of intellectual goods is to give future creators a continuing incentive to create, assuring them there will be markets for their creations. At the same time, though, copyright makes the task of those future creators more difficult by making it harder for them to borrow/steal/parody/build upon/transform/adapt/modify/rip earlier works.

This tension between the claims of the already created and the not yet created, between the past and the future, is always at the core of copyright law. It becomes acute when, as now, revolutionary new technologies of production or distribution come along. Free Culture includes illuminating descriptions of the battles that accompanied revolutionary technologies (and some technologies that, in hindsight, were not so revolutionary): the camera, motion pictures, the player piano, radio, television, long-playing records. There always has been, and probably always will be, intense warfare on the copyright battleground whenever such technologies emerge -- between those who want to extend their creative control over developments in the new media and those who want to use the new technologies to recreate, reinterpret, reuse, and redistribute existing works.

Through it all, Lessig suggests, copyright law has managed, by and large, to steer a middle course, giving enough protection to existing stakeholders so that they have the necessary incentives for continuing to create, while limiting that protection so that the next generation of creators can use and adapt prior material for their own ends. To use an example Lessig makes much of, when radio and recording technology came of age in the early part of the last century, a series of court decisions and changes in the Copyright Act gave broadcasters something (the right to play recorded performances on the air without seeking the permission of, or paying a royalty to, the performers) but not everything they wanted (they do need to pay royalties to the composers of the works); gave the composers something (the right to a royalty from broadcasters) but not everything they wanted (performers are permitted to make "cover versions" of previously recorded works without the composers' permission); and gave performers something (the "cover right") but not everything they wanted (performers still have to pay royalties if they exercise their right to cover a song). The law, in other words, carved out a zone of protection and a zone of unprotection, the private domain and the public.

To be sure, the balance never has been struck perfectly; law is not like that, and in any event we'd surely be unable to recognize the "perfect" balance even if we happened to stumble upon it. But Lessig argues that we managed to achieve a kind of rough, workable balance. Until now.

The current state of copyright law is many things; balanced, though, it is not. "Swollen to gargantuan proportions" is closer to it. Copyright began as a scheme for regulating a small corner of the universe of creative activity. The first Copyright Act, Lessig explains, protected only "books, maps and charts" (intentionally excluding songs, paintings, dramatic performances, speeches, newspaper articles, and so on); it protected them only against duplication in the same medium (intentionally excluding translations, dramatizations, adaptations, and the like); and it did so for no more than 14 years. Copyright has morphed into a system under which virtually all creative output is subject to rights that are virtually unlimited in scope and virtually perpetual in duration.