Free Culture vs. Big Media

Lawrence Lessig leads the charge to retake the public domain.

David Post from the November 2004 issue

(Page 2 of 2)

Just about every bit of creative expression committed to paper or canvas or computer screen anywhere on Earth -- every e-mail you write, every doodle on your office notepad, every photograph you take -- is, under current law, protected by copyright. Protection attaches to it the moment it sees the light of day -- you don't have to register it or put a "copyright notice" on it; the protection lasts until long after you die (70 years in most cases); and the work can't be copied, downloaded, stored in a searchable database, translated, abridged, performed, made into a movie, or used as the basis of a satirical video without your permission.

At just the moment when the technologies of borrowing, sharing, repackaging, and reinventing -- technologies such as blogs, wikis, peer-to-peer file sharing, full-text searching, digital video, and off-the-shelf music mixing software -- have become so powerful as engines for creative expression, copyright law permits, in effect, nothing at all. Just when the future of creative expression looks so promising, argues Lessig, the claims of the past have been shored up, and they block the way.

Copyright, "which began as a tiny regulation governing a tiny part of the market for creative work, has become the single most important regulator of creativity there is," Lessig writes. "It is a massive expansion in the scope of the government's control over innovation and creativity; it would be totally unrecognizable to those who gave [it] birth."

What, if anything, is to be done? Lessig's position is clear: This "massive expansion" in copyright's scope needs to be corrected, and corrected soon; copyright needs to be recalibrated, rebalanced, reined in. In the second half of the book, he offers some specific proposals for how that rebalancing might be achieved. Some of his suggestions strike me as well-conceived: proposals to shorten the term of copyright, to broaden the scope of permissible "fair use," to reduce the copyright holder's ability to control the production of "derivative works," and to reintroduce copyright formalities (so that those who actually want the protection provided by copyright law have to take affirmative steps to obtain it).

Other suggestions require a bit more thinking through. For instance, Lessig's proposal for an Internet-wide compulsory licensing scheme -- a fixed, government-set royalty rate covering all music downloads -- strikes me as unwise. There are, to begin with, serious practical and theoretical problems with any scheme that sets a single (per-byte?) price to cover all musical works. More importantly, under a compulsory licensing scheme, the government is suddenly the arbiter of all transactions; every music download becomes, literally, a federal case. The potential for government snooping, not to mention the administrative nightmare, gives me pause.

And I have some other nagging doubts that Lessig never quite dispels. It's undeniable that the scope of copyright has expanded vastly during the last few decades. But there is a respectable slice of opinion that views this expansion much more positively than Lessig does -- one that welcomes these developments.

This position starts from the premise that copyrights are, fundamentally, property rights, and that property rights are, as a general rule, a good thing. Without property rights there can be no markets, and without markets there is no way to process all the information about individual needs and wants or to translate that information into socially beneficial production and allocation decisions. Copyright law, from this perspective, is a marvelous, decentralized property-creation machine; everyone gets to "own" his or her creative expression and to do with it (or not do with it) whatever he or she pleases.

Those who take this position believe the more copyright protection, the better. The broader and deeper the copyright, the broader and deeper the markets for creative expression; the broader and deeper the markets for creative expression, the more creative expression we'll get. No balancing required, thank you very much.

Lessig treats this opposing view rather offhandedly, a serious flaw in an otherwise excellent book. The problem with this expanded property creation scheme, he (rather lamely) suggests, is that the property being created is gobbled up by a few rapacious oligopolists. At the end of his description of the "massive expansion" in copyright's breadth and scope he writes: "All of these changes would not matter much, if it weren't for one more change[:] the change in the concentration and integration of the media....In the past twenty years, the nature of media ownership has undergone a radical alteration, caused by changes in legal rules governing the media. Before this change happened, the different forms of media were owned by separate media companies. Now, the media is [sic] increasingly owned by only a few companies." (Italics added.)

So "media concentration" is the real culprit in all this? The expansion of copyright "would not matter much" if we had better antitrust enforcement?

Personally, I'm not about to follow Lessig to the barricades of copyright reform with nothing more than this in hand. In a world where anyone with an Internet connection has access to a prodigious, historically unprecedented diversity of "media," the notion that "media concentration" is at the heart of our problems strikes me as implausible. Lessig's analysis of the issue consists of little more than a few anecdotes about Rupert Murdoch's appetite for broadcast properties and Norman Lear's difficulties in getting All in the Family picked up by network TV. There may well be a principled rejoinder to the property rights advocates that doesn't rely on the bogeyman of monopoly control. But if there is, Lessig doesn't provide it here.

Free Culture is not, then, the final word on the subject. But to be fair to Lessig, the rabble-rouser's job is not to have the final word. Good rabble-rousers don't end the discussion; they get it started.

I get questions from time to time, from students and others, looking for help sorting out the issues surrounding the music piracy battles. Who's right, and who's wrong? What should copyright law do about all this file sharing? What good is copyright, anyway? I'll be pretty comfortable, for the foreseeable future, suggesting that they could do much worse than to start with Lessig's book.

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