I finally finished Lawrence Lessig’s latest book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Professor Lessig, a leading light in the copyfight, posits some pressing points regarding copyright and culture in a digital world. But the book's message is confusing and unfocused.
Professor Lessig proposes a simple, but probably untenable solution, for what he sees as the core problem of an ever-decreasing – even disappearing – public domain of material from which creators can draw: reinstitute a modified system of required registration to receive the full measure of copyright protection.
He leaves unaddressed, however, the complaints he raises in the bulk of the book: corporations are utilizing technology and the law to alter the balance between seller and purchaser of cultural materials; one can utilize the American legal system to one's advantage if one has money; and our laws provide inadequate protection for individuals' rights in the intellectual property area because they are not practical for the average person. The book is also marred by conflation of arguments, fuzzy analogies, and, from a law professor, shocking misstatements about the law.
Despite his professed support for copyright and free markets, Professor Lessig proposes that digital technology has changed the nature of copyright and its interaction with culture to the detriment of our society:
• Digital technology provides tools that shift the balance of copyright away from promotion of the public good and into the hands of authors - or those owning the author’s rights (i.e., corporations). The result of this is that the public domain of material for creative expression is being quickly diminished and culture is now being made in a very different way.
• The Exploitation of digital technology has reduced the free expressive possibility this technology offers individuals. The Internet has set the stage for this reduction and, pushed by big media, the law has now affected it. Here, the essence of his argument is clear: large corporations utilize copyright law to increase commercial activity and eliminate free activity.
• The current arguments in copyright are framed as a battle between “property” and “piracy.” “[I]n our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. . . .The current debate has this turned around. We have become so concerned with protecting the instrument that we are losing sight of the value.”
Unfortunately, Professor Lessig lets rhetoric get the better of him and his argument loses clarity and strength.
• In the “good old days” before copyright lost control, “[s]cientists could build upon the work of other scientists without asking or paying for the privilege. (‘Excuse me, Professor Einstein, but may I have permission to use your theory of relativity to show that you were wrong about quantum physics?’).”
Nothing prevents a scientist today from using Einstein’s theory of relativity without Einstein’s permission. The theory is only an idea, which is unprotectable under copyright.
• If “piracy” means using value from someone else’s creative property without permission from that creator– as it is increasingly described today – then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation – until now.
Similarly, Professor Lessig bemoans the apparent change in attitude today. If it was ok for everyone else to do it earlier, it is ok to continue doing it now.
• Current claims that piracy is unacceptable are inconsistent because copyright law already permits piracy. If Madonna records a song the reader has written and it gets played on the radio, the “radio station gets to ‘pirate’ the value of Madonna’s work without paying her anything” because we only give performers a limited subset of the full copyright that authors receive.
Professor Lessig proposes a position, more consistent with the natural law theory of property prevalent in Europe, that all creators are equal and all creators deserve the same rights. Congress has taken a different position. The copyright laws offer a limited set of rights to performers. There are any number of reasons for this, perhaps including the fact that performers would have nothing to perform without the work of authors.
• Defending a copyright is really only an option for the rich and for corporate interests. Consider the story of Jesse Jordan, a teenager sued by the RIAA for $15 million and forced to settle, through a “mafia-like” choice of having to spend $250,000 to defend his rights to download and copy music, or settle with the RIAA for his entire life savings of $12,000.
On this point, Professor Lessig and I would completely agree: the legal system in America is unjustifiably expensive and the result is that people or companies with means often get an outcome they are happy with. Some might say they are able to buy justice. But this is an endemic problem to our system and has nothing to do with the copyright laws of our country.
• Impliedly, corporations have become more aggressive at influencing the outcome of social issues to their advantage.
This, too, however, is an endemic problem in our country (and a growing problem in the world at large) that is very clearly addressed in Professor Joel Bakan’s recent book The Corporation.
• Calling copyright a kind of property is misleading. “[T]he property of copyright is an odd kind of property. Indeed, the very idea of property in any idea or any expression is very odd . . . The point instead is that in the ordinary case – indeed, in practically every case except for a narrow range of exceptions – ideas released to the world are free . . . The exceptions to free use are ideas and expressions within the reach of the law of patent and copyright, and a few other domains that I won’t discuss here. Here the law says you can’t take my idea or expression without my permission: The law turns the intangible into property. (emphasis added)
Perhaps Professor Lessig lets his argument get the better of him, ignoring the fact that United States law could not be clearer on this point: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
• Congress’ recent and frequent extensions of copyright have, from a practical point of view, eliminated the limitation on Congress’ power to grant copyrights for a “limited time.” As a result, “American law no longer ha[s] an automatic way to assure that works that were no longer exploited passed into the public domain. And indeed, after these changes [the extension of copyright protection to the life of the author plus seventy years], it is unclear whether it is even possible to put works into the public domain.”
Professor Lessig’s overstatement diminishes the opportunity for rational discussion of the issues at hand. First, there is no question of whether it is possible to put works in the public domain. Anybody can renounce his or her copyright by reserving no rights in the work or through one of the limited licenses currently being utilized, such as a Creative Commons license (Free Culture itself is published under such a license) More precisely, then, Professor Lessig’s point is there is no certainty that all copyrightable material will ever enter the public domain if we continue on our current course, which fundamentally contradicts the founding fathers’ intentions. The issue of licensing is a critical one.
• Copyright law and its application have expanded to regulate simple acts, such as reading a book. “[Previously, n]one of those instances of use – reading – could be regulated by copyright law because none of those uses produced a copy. But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish. (emphasis added)”
Professor Lessig makes the wrong argument here. The real issue is the strengthened bargaining power owners of property have with digital technology, not changes in copyright law. Selling copies of writings used to be the most efficient distribution method of those books. Digital technology now offers the author the ability to efficiently distribute such writings without having give up all future rights; authors can now license their works instead of selling them.
But there is a simple way to address this without resorting to copyright – don’t buy (license) any ebooks (or other material) with restrictive conditions of use. Just imagine what would happen if, for a sixty (60) day period, nobody bought regionally encoded DVDs, or ebooks limiting their licensee to only 10 readings. The market is very efficient at quickly addressing such matters: much more efficient than copyright law. But Professor Lessig clearly likes the convenience of digital books, which is what the purveyors of such intellectual property depend on when they offer licenses instead of selling the work. Yes, they may use copyright law as a backstop for their greater restrictions, but what they are really doing is flexing their muscles and altering the seller/purchaser relationship.
• Purveyors of copyright material are increasingly introducing technological controls, which replace permissions granted in copyright law.
While this may be true, this is not a copyright law matter, but rather a contract law issue.
• All the changes wrought by technology would be acceptable were it not for consolidation and integration of media.
While I am in complete agreement with Professor Lessig on the dangers presented by such concentration, I also believe that this is not a copyright matter.
• “[F]air use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astoundingly bad – in practically every context, but especially here. It costs too much, it delivers too slowly, and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law.”
Professor Lessig’s condemnation of the American legal system is just that - a condemnation of the American legal system, not of the state of copyright law.
Having spent many pages of excessive rhetoric and simplification to bolster his argument that copyright law is out of control, Professor Lessig turns around and is critical of the fact that most discussion on this topic is colored by rhetoric and simplification belying the true issues at hand. He characterizes the debate as a “chimera,” which he defines as “a person containing two sets of DNA.”
Analogously, in the context of p2p sharing, he says, “both sides have it right, and both sides have it wrong.” Rather than accepting either side’s arguments, he proposes that there is a middle way that recognizes the truth in both positions. Returning to an earlier complaint, he suggests that current government policy, pursuing the “extreme” position of zero tolerance, causes the loss of “many an opportunity for new innovation and new creativity.”
According to Professor Lessig, we periodically make the actions of a significant portion of our population illegal. Laws such as prohibitions on drinking alcohol, recreational drug use, speeding in your automobile, and (some would say) our entire tax system causes “a huge proportion of Americans [to] regularly violate at least some law.” He considers that our general response to such situations is to either more harshly enforcing the law or change the law and suggests that we must find a more rational method of making the choice.
Applying this to copyright, it makes no sense to pursue a policy that makes 43 million Americans criminals, we should pursue a system that achieves the legitimate objectives of our copyright system but “le[aves] consumers and creators much more free.” Thus, Professor Lessig rationally argues for a change in the dialogue from arguing about how the Internet should be regulated to eliminate file sharing to how to assure that artists get paid.
At this point in the book, Professor Lessig has expressed legitimate concerns that should make us all think. But it is not clear what the real topic of his book is. Whereas one begins reading the book thinking it is a condemnation of current copyright law and practice, it becomes a condemnation of (i) how we set and pursue policy objectives and (ii) how our legal system is used as a tool by corporations and those with means to affect their interests to the detriment of the greater public.
Returning to his conclusion that copyright is broken and we need to fix it, Professor Lessig proposes that we institute a registration requirement 50 years after a creative work is published. If an author/owner wanted to gain the remaining protection available (to life plus 70 of the author), an author/owner would need to file a registration statement and pay a one (1) dollar fee. This is not unlike the requirement for renewal of a trademark that requires a statement that the mark is still in use once every ten years in order to extend protection.
Thus, Professor Lessig advocates a quasi-return to an earlier era in copyright in which we required a registration in order to gain copyright protection and prevent a work from entering the public domain. This system was abolished when we acceded to the Berne Convention. Such a roll-back is inconceivable now, however. In joining the Berne Convention, we have signed on to the idea that globalization requires us to be on no less advantageous terms than those of our potential markets. But this is a devil’s bargain we have made that opens up markets for our companies while simultaneously strengthening their hand to control their products and our rights to use them.
Perhaps this is the real battle Professor Lessig should be fighting.
