Intellectual Property

Free Culture vs. Big Media

Lawrence Lessig leads the charge to retake the public domain.


Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig, 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.

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.