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.

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:

Responding to the discussion about the copyrightability of its headlines, Reuters has jumped into the discussion. Their announcement that they do not consider use of their headlines in XML feeds to be infringement of their copyright clearly implies the underlying consensual control the copyright owner has. Under traditional law in the US, the owner is the one to control the enumerated rights for which they are granted protection. But the Reuters statement avoids the key question of whether or not a headline is subject matter that is subject to copyright. As others have stated, a title is traditionally not subject to copyright. This is a definitional fact, much as typefaces are not subject to copyright, nor are public performances. So the relevance of Reuter's statement is premised solely on an affirmative answer to the core question: is a headline protectible. If not, it does not matter that Reuters consents to not enforce its rights because it would not have any rights to enforce.