Free Culture

free culture

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity’  is a 2004 book by law professor Lawrence Lessig that was released on the Internet under the Creative Commons Attribution/Non-commercial license.

The book documents how copyright power has expanded substantially since 1974 in five critical dimensions: duration (from 32 to 95 years), scope (from publishers to virtually everyone), reach (to every view on a computer), control (including “derivative works” defined so broadly that virtually any new content could be sued by some copyright holder as a ‘derivative work’ of something), and concentration and integration of the media industry.

It also documents how this industry has successfully used the legal system to limit competition to the major media corporations through legal action against college students for close to $100 billion, because their improvements of search engines made it easier for people in a university intranet to find copyrighted music placed by others in their ‘public’ folder; Lawyers who advised MP3 that they had reasonable grounds to believe what they did would be legal; and Venture Capitalists who funded Napster. The result is a legal and economic environment that stifles ‘the Progress of Science and useful Arts,’ exactly the opposite of the purpose cited in the US Constitution. It may not be possible today to produce another Mickey Mouse, because many of its early cartoon themes might be considered ‘derivative works’ of some existing copyrighted material (as indicated in the subtitle to the hardback edition and in numerous examples in this book).

This book is an outgrowth of the U.S. Supreme Court decision in Eldred v. Ashcroft, which Lessig lost. Article I, Section 8, Clause 8 of the U.S. Constitution says, ‘The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’ Several times in the past century, congress has extended the copyright law in several ways. One way was to extend the term ‘on the installment plan.’ Another was to broaden the scope to include not only copying but creating ‘derivative works.’ This latter broadening is so ambiguous that it provides a foundation for massive abuse of power by companies holding large copyright portfolios.

For example, the Recording Industry Association of America sued a freshman at Rensselaer Polytechnic Institute (RPI) for $10,000,000 for improving a search engine used only inside RPI. Lessig cites another example where Fox demanded $10,000 for the rights to use a 4.5 second video clip with ‘The Simpsons’ playing on a television in a corner of that scene. Anyone producing a collage of video clips can potentially be similarly sued on the grounds the collage is a ‘derivative work’ of something copyrighted or that the collage contains a shot that is copyrighted. Lessig argues that this substantially limits the growth of creative arts and culture, in violation of the US Constitution. The Supreme Court ruled that Congress has the constitutional authority to properly balance competing interests on cases like this.

In the preface of ‘Free Culture,’ Lessig compares this book with a previous book of his, ‘Code and Other Laws of Cyberspace,’ which propounded that software has the effect of law. Free Culture’s message is different, Lessig writes, because it is ‘about the consequence of the Internet to a part of our tradition that is much more fundamental, and, as hard as this is for a geek-wanna-be to admit, much more important.’ Professor Lessig analyzes the tension that exists between the concepts of piracy and property in the intellectual property realm in the context of what he calls the present ‘depressingly compromised process of making law’ that has been captured in most nations by multinational corporations that are interested in the accumulation of capital and not the free exchange of ideas. The book also chronicles his prosecution of Eldred and his attempt to develop the Eldred Act, also known as the Public Domain Enhancement Act or the Copyright Deregulation Act.

Lessig concludes his book by suggesting that as society evolves and incorporates information technology a choice must be made between free or feudal systems. In his afterword he suggests that free software pioneer Richard Stallman and the Free Software Foundation model of making content available is not against the capitalist approach that has allowed such corporate models as Westlaw and LexisNexis to have subscribers to pay for materials that are essentially in the public domain but with underlying licenses like those created by his organization Creative Commons.

He also argues for the creation of shorter renewable periods of copyright and a limitation on derivative rights, such as limiting a publisher’s ability to stop the publication of copies of an author’s book on the internet for non-commercial purposes or create a compulsory licensing scheme to ensure that creators obtain direct royalties for their works based upon their usage statistics and some kind of taxation scheme such as suggested by professor William Fisher of Harvard Law School that is similar to a longstanding proposal of Richard Stallman.

Lessig defines ‘Free Culture’ not as ‘free’ as in ‘free beer,’ but ‘free’ as in ‘free speech.’ A free culture supports and protects its creators and innovators directly and indirectly. It directly supports creators and innovators by granting intellectual property rights. It indirectly supports them by ensuring that follow-on creators and innovators remain as free as possible from the creators of the past by limiting how extensive intellectual property rights are. A ‘permissions culture’ is the opposite of a free culture; in a permissions culture, creators and innovators are only able to create and innovate with the permission of creators of the past – whether they be powerful creators or not.

Lessig presents two examples that provide some insight into the nature of these dueling cultures. In the first, an example of ‘free culture,’ he describes how aircraft operators did not have to abide by an old law that land owners also owned the air above the property and thus could forbid overflight. In the second, an example of a ‘permissions culture,’ he describes how David Sarnoff, president of RCA, managed to persuade the government to delay the deployment of the rival wideband FM radio, invented by Edwin Howard Armstrong. He describes this as an example of how the inventor of a new invention can be forced to request ‘permission’ from a previous inventor.

The disparate features of a free culture and a permissions culture effect how culture is made. In a free culture, innovators are able to create – and build upon past creations – without the worry of infringing upon intellectual property rights. In a permissions culture, innovators must first request ‘permission’ from past creators in order to build upon or modify past creations. Often times, the innovator must pay the past creator in order to obtain the permission needed to procede. If the past creator refuses to grant permission to the innovator, the past creator may appeal to the government to enforce their intellectual property rights. Typically, intellectual property rights protect culture that is produced and sold, or made to be sold. This type of culture is commercial culture, and the focus of the law is typically on commercial creativity rather than non-commercial activity. Initially, the law, ‘protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace.’ This protection has become far more extensive, as is evinced in the Armstong/RCA example.

Lessig argues that we are fast becoming a permissions culture, though he sees the internet as a modern-day Armstrong: it challenges the traditional innovator and seeks to break free of any permissions or strict regulations. The internet can provide a vastly more vibrant and competitive innovation culture, and this is troublesome for any large corporations that have invested in fortifying their intellectual property rights: ‘Corporations threatened by the potential of the internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them.’ The internet has facilitated the mass production of culture, both commercial and noncommercial.

Corporations that had traditionally controlled this production have reacted by pressuring legislators to change the laws to protect their interests. The protection that these corporations seek is not protection for the creators, but rather protection against certain forms of business that directly threaten them. Lessig’s worry is that intellectual property rights will not be protecting the right sort of property, but will instead come to protect private interests in a controlling way. He writes that the First Amendment protects creators against state control and copyright law, when properly balanced, protects creators against private control. Expansive intellectual property rights stands to dramatically increase all regulations on creativity in America, stifling innovation by requiring innovators to request permission prior to their creative work.

Free Culture covers the themes of Piracy and Property. Lessig writes at the end of the Preface, ‘…the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it

‘How free is this culture?’According to Lessig, ours has been but is decreasingly a free culture. Free cultures leave content open for expansion by others. Purportedly, this is not a new practice, but one that is increasingly challenged, mostly for economic reasons by creators and industry. The conflict or ‘war against piracy’ emerges out of efforts to regulate creative property in order to delimit the use of creative property without permission. As Lessig sees it, ‘the law’s role is less and less to support creativity, and more and more to protect certain industries against competition.’

This new role of law is meant to protect copyright owners from ‘pirates’ who share their content for free, effectively ‘robbing’ the creator of any profit. Lessig acknowledges piracy is wrong and deserving of punishment, however he is concerned the concept, as it appears in the context of ‘internet piracy,’ has been used inappropriately. This problematic conception follows a certain chain of reasoning: creative work has value; when an individual uses, takes or builds upon someone else’s creative work they are appropriating something of value from the creator. If someone appropriates something of value from a creator without the creator’s expressed permission, then that someone is ‘pirating’ the creator’s work, and this is wrong. Rochelle Dreyfuss, an NYU Professor of Law, has termed this conception of piracy the ‘if value, then right’ theory of creative property – namely, ‘if there is value, then someone must have a right to that value.’

First defining and then pointedly critiquing a prevalent ‘f value, then right’ notion of creative property, Lessig emphasizes that American law recognizes intellectual property as an instrument. Lessig points out that ‘if value, then right’ is correct, then film, recorded music, radio, and cable TV each is built on a history of piracy. Lessig details the history of these four ‘pirates’ as examples of how pervasive has been the practice of making use of others’ creative property without permission. Importantly, Lessig points out, throughout human history, ‘every society has left a certain bit of its culture free for the taking.’ This free culture has historically been deliberate, and widely appreciated.In fact, ‘creators here and everywhere are always and at all times building upon the creativity that went before and that surrounds them now.’

For centuries, copyright holders have complained about ‘piracy.’ In 1996, the American Society of Composers, Authors and Publishers (ASCAP) sued ‘the Girl Scouts for failing to pay for the songs that girls sang around Girl Scout campfires.’ The suit was a public relations disaster for ASCAP, and they dropped it. However, the law still remains: If you sing a copyrighted song in public, you are legally required to pay the copyright holder. Copyright law has also been extended to threaten the very creativity that is a central value of our society, burdening it ‘with insanely complex and vague rules and with the threat of obscenely severe penalties.’ Copyright law at its birth only protected inappropriate copying. Today it also covers ‘building upon or transforming that work.’

Lessig explains that copyright is a kind of property, but that it is an odd kind of property for which the term can sometimes be misleading–the difference between taking a table and taking a good idea, for example, is hard to see under the term ‘property.’ As late as 1774, publishers believed a copyright was forever. A copyright at that time was more limited than it is today, only prohibiting others from reprinting a book; it did not cover, as today, other rights over performance, derivative works, etc. Modern technology allows people to copy or cut and paste video clips in creative new ways to produce art, entertainment, and new modes of expression and communication that didn’t exist before.

The resulting potential for media literacy could help ordinary people not only communicate their concerns better but also make it easier for them to understand when they are being suckered into things not in their interests. However, current copyright law effectively restricts the use of this to very wealthy individuals and corporations for two reasons: (1) the vagueness of ‘fair use,’ and (2) the costs of negotiating legal rights for the creative reuse of content are astronomically high. ‘You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don’t have to rely on fair use rights.’

A day after the book was released online, blogger AKMA suggested that people pick a chapter and make a voice recording of it, partly because they were allowed to. Users who commented volunteered to narrate certain chapters. Two days later, most of the book had been narrated. Besides audio production, this book was also translated into Chinese, a project proposed by Isaac Mao and completed as a collaboration involving many bloggers from mainland China and Taiwan. Other translations include Catalan, Czech, French, Hungarian, Italian, Polish, Portuguese, and Spanish.

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