Lawrence Lessig's Free Culture struggles with the continuing antagonism between "property" and "piracy," which Professor Lessig proposes is our historical norm, without reconciling these two opposing tendencies. Thanks to Ernest Miller, I found Timothy Wu's trenchant Copyright's Communication Policy that attempts to explain the tensions in our copyright law and the struggle Lessig describes.

Wu's observant central premise is that American copyright history has been a story of two public policies - (i) providing author's rights and (ii) managing competition between disseminators - that ebb and flow as technology develops. Wu argues that historically, entrenched technologies (used by disseminators) are threatened by new technologies (and new disseminators) periodically.

The mature technology suppliers fall back on copyright as a method of preventing the new technology from utilizing its competitive advantage by denying content through strict interpretation of copyright law. The struggle continues until the Supreme Court sides with one or the other, and then (and only then) Congress acts to set forth a communication policy vis-a-vis the new technology. Generally, this legislative solution has taken the form of a compulsory license which makes the content available at a preset cost for new technology purveyors. His arguments echoes Clayton Christensen's The Innovator's Dilemma.

In light of Lessig's struggle with the current debate and his cry for a more rational basis of determining copyrights in order to insure the original Founders' intent, Professor Wu's framework is a rational basis on which to examine public policy, but requires earlier engagement by Congress as policy makers.