Freeculture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity
Freeculture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity
Author:
Lawrence Lessig
Date of Publication:
2004
Rating:
8
Summary:
I found a link to the free e-version of this book (http://www.free-culture.cc/) on Slashdot when it was first published in 2004. I downloaded a copy and stuck in my ‘to-read’ file and finally got around to reading it. Given the topic, I certainly don’t feel qualified to critique many of the arguments laid out in the book; I’m a sociologist, not a lawyer. Even so, having put together a few works of my own, I found that not only could I understand about 99% of what the author said but that it also made me think about my approach to releasing my work into the public domain. Anyway, on with the review…
The primary premise of the book is laid out on page 19, “Thus, as we’ll see more clearly in the chapters below, the law’s role is less and less to support creativity, and more and more to protect certain industries against competition.” To understand what the author means by this, it’s necessary to give a little bit of background.
Copyright refers to the legal regulations surrounding creative works (e.g., music, books, art, etc.). Copyright law exists to protect the intellectual and/or creative property of individuals, allowing them to profit from their creations. Starting in the UK in the 1700s but also stipulated in the U.S. Constitution, copyrights were supposed to expire after 14 years. In other words, when a copyright on a product expired, it would be released into the public domain. At that point, anyone could reproduce it (for a profit or not) or create derivative products from it (again, for profit or not). The idea, according to Lessig, was to give the original creators the time required to exploit their product, which for most creative works is about 1 to 2 years, then allow the product to move into the public domain where it becomes both part of culture and a tool that can be used for new creations.
However, and this is where Lessig’s book comes into play, copyright law in the U.S. is currently in a strange state of perpetual change. The original stipulation in the constitution that copyrights would expire after 14 years has been extended through a series of legislative bills to where copyrights now last for close to 100 years. This may not seem like a serious problem on the face of things, but Lessig disagrees. Lessig builds a compelling argument that very few copyrights are actually lucrative after the first couple of years (e.g., Star Wars IV is; Plan Nine from Outer Space is not). By keeping all creative works under copyright, the legal system is preventing a lot of non-lucrative creative works from being released into the public domain. Lessig argues this is harmful in that those works could be used as the foundations for new creative works. But the more compelling argument in my opinion is that by not releasing these works into the public domain, there is a risk that the works will be lost for good. Lessig illustrates this well by using the example of films. Very few films actually have a lasting value after their initial release. Far more films are released and then sit in storage unwatched. Lessig isn’t opposed to the owners of the lucrative films maintaining their copyrights and making money off of their product. But he is opposed to keeping the non-lucrative films locked up in vaults where they will slowly decay and possibly disappear forever.
Lessig ties this to the internet in two ways. First, there are several initiatives to collect and index old books and movies, but these initiatives are limited to products that have been released into the public domain. Thus, the thousands of movies produced starting at the beginning of the 19th century up until the end of the 19th century (when digital copies began to be made regularly, i.e, DVDs) that are deteriorating could easily be transferred to a digital format and shared with millions of people for very low cost; but because of copyright, they are locked up and left to rot. That is a waste of a lot of creative effort. Lessig also argues that the internet, and especially peer-to-peer (p2p) technology, is extremely useful in making available out-of-print products (music, books, films, etc.). Lessig argues that tracking down many out-of-print items is prohibitively expensive and time consuming and therefore wasteful. p2p technology can solve this problem cheaply and effectively.
There are two additional problems with the copyright system as it now stands. First, it is almost impossible to track down who owns the copyrights to a given product because there is no central repository or database with that information. Second, clearing copyrights to use a product (beyond what is considered “fair use”) is also time consuming and wasteful. To return to the example of movies, to clear the copyrights to show an excerpt of a film you have to get permission from all of the following people: the director, the producers, the production company, every actor who appears in the shot, and the musician who put together any music that appears in a given shot (I’ve probably missed a few others). That is a ridiculously time-consuming and expensive process.
So what is Lessig advocating? Well, he is not advocating anarchy where nothing is protected. In fact, he is opposed to people downloading music that is cheaply available elsewhere online. He is advocating reforms to the existing copyright system. As noted above, he believes people should be allowed to keep the copyrights to their lucrative products. But he is also advocating that copyrights have a specific limit (~50 years) and that, after that point, all creative works will move to the public domain unless the copyright owner re-registers the copyright by filling out a simple form and paying a $1 fee. This would: (1) allow most of the non-lucrative works out there to move into the public domain, (2) create a database of copyright holders, and (3) still protect lucrative copyrights.
But even these proposals do not seem to be finding much support. Lessig details this by recounting his experiences challenging the Sonny Bono Copyright Extension Act of 1998 before the Supreme Court, a case he lost, and his attempt to pass the Eldred Act, which also failed. This leads Lessig to ultimately conclude with the following question and answer, “What does this industry [big media] really want? With very little effort, the warriors [big media] could protect their content. So the effort to block something like the Eldred Act is not really about protecting their content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn’t require their permission first” (p. 255). In short, Lessig believes large corporations are trying to lock up virtually all of the creative and cultural products with copyrights that will never expire, guaranteeing their ability to charge the public for parts of our culture forever.
Review:
I find most of Lessig’s arguments compelling, with one exception. On page 199 Lessig begins the development of an additional problem that I didn’t find very convincing, “Overregulation corrupts citizens and weakens the rule of law.” Keep in mind that I don’t study the law or overregulation, so I’m not really in a position to comment here. But Lessig then takes this argument and applies it to the illegal downloading of music. Lessig claims that the laws surrounding the downloading of music should be changed, not because the laws don’t make sense, but because so many people are breaking the laws. I’d like the laws to be changed just as much as the next p2p user, but there has to be a better justification than this one.
Other than this one minor disagreement, I found the rest of the book compelling, insightful, and well-written. Let me highlight one powerful point made by Lessig that left me dumbfounded with its simplicity. In talking about the absurdity of legislation and litigation surrounding copyright law, Lessig draws the following parrallel, “The obvious point of Conrad’s cartoon is the weirdness of a world where guns are legal, despite the harm they can do, while VCRs (and circumvention technologies) are illegal. Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do” (p. 160). This is a clear case that bolsters Lessig’s ultimate conclusion: what legislation and litigation are really doing is protecting the rights of corporations at the expense of consumers.
I have considered copyright issues because of my website and the books I have put together. Because the book addresses an issue I have faced but never really delved into in much depth, I probably found it more fascinating that most people would. If you are interested in copyright law as either a producer of creative works or as a consumer – come on, we’re all consumers – you will probably find the book fascinating. And if you think about it, you really don’t have anything to lose; the book is free.
