Free Culture (book)

This article is about the book; for other meanings of the phrase, see free culture.

Free Culture
Original cover
Author(s)	Lawrence Lessig
Country	United States
Language	English
Genre(s)	Non-fiction
Publication date	2004
Media type	Print (Hardcover and Paperback)
Preceded by	The Future of Ideas
Followed by	Code: Version 2.0

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (published in paperback as Free Culture: The Nature and Future of Creativity) is a 2004 book by law professor Lawrence Lessig that was released on the Internet under the Creative Commons Attribution/Non-commercial license (by-nc 1.0) on March 25, 2004.

This 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).

"There has never been a time in history when more of our 'culture' was as 'owned' as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now." (pg. 28)

Summary

The law professor Lawrence Lessig

This book is an outgrowth of the US Supreme Court decision in Eldred v. Ashcroft, which Lessig lost. Article I, Section 8, Clause 8 of the US Constitution says that, "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." (pg. xiv)

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 the Eldred v. Ashcroft case 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 into an information society there is a choice to be made to decide if that society is to be free or feudal in nature. 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 [1] that is similar to a longstanding proposal of Richard Stallman.

Themes

Introduction

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 example, innovation trumps government regulation: the Wright brothers (and all subsequent aircraft manufacturers) were liberated from abiding by an outdated law mandating that (land) property owners were also the owners of the air directly above their property, enabling any property owner to forbid aircrafts from flying over their property (see United States v. Causby). Aircrafts were deemed beneficial for the greater public good, and a ‘private interest’ (a claim to air property rights) would not outweigh such a beneficial technological advancement. This is an example of a free culture; the Causby's did not have the power to stifle innovation, and air travel has since became a part of our culture.

The second example is a tragic version of a permissions culture: an innovator, Edwin Howard Armstrong, invented a wideband frequency modulation (FM) radio – a (non-intentional) rival radio spectrum FM to RCA’s AM radio spectrum - and was met with fierce opposition and legal bullying from David Sarnoff, RCA’s president. Because Sarnoff was a “superior tactician,” RCA successfully petitioned the government to delay the deployment of FM radio, and ultimately succeeded in moving Armstrong’s FM spectrum onto its own separate spectrum band to “kill” it. This is an example of a powerful past innovator (RCA) using the government to force new innovators to request “permission” to build upon past inventions. In this case, “permission” was not granted, and the new innovation was not allowed to flourish (though we know now that FM radio did Flourish, Armstrong committed suicide before his invention was vindicated). Sarnoff's powerful position enabled him to successfully stifle innovation, preventing (albiet temporarily) the creation of culture.

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.”

Piracy

"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."

First defining and then pointedly critiquing a prevalent "if 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's creative property without permission. Importantly, Lessig points out that 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 wnet before and that surrounds them now.")

Lessig goes on to suggest that the advent of the Internet has changed our culture, and along with it the expectation and acceptance of creative priacy. In particular, the internet has brought about a war against piracy. At the heart of the heat is a question about the reach, benefit, and burden of copyright law. The internet is a bold challenge to the "natural limit to the reach of the law" ,and therein lies the quandry. The presence of the internet instigates and fans the flames of the piracy war by virtue of its inherent ability to very quickly and indiscriminately spread content.

Ultimately, Lessig leaves us to deliberate that "even if some piracy is plainly wrong, not all piracy is." Finding the balance is, has been, and needs to contniue to be the process of US law; ,) internet use, as exemplified by peer to peer (p2p) file sharing pushes the envelope.

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 the suit. However, the law still remains: If you sing a copyrighted song in public, you are legally required to pay the copyright holder.

But copyright law has 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 ... . [W]hen the law regulates as broadly and obscurely as it does, the extension matters a lot. The burden of this law now vastly outweighs any original benefit ... . [T]he law's role is less and less to support creativity, and more and more to protect certain industries against competition."

Property

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". (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."

Drawing on an argument Lessig made in [Code and Other Laws of Cyberspace] he applies the model of four different modalities of regulation that support or weaken a given right or regulation. The four means of regulation are law, market, architecture and norms . These four modalities constrain the target group or individual in different ways, and law tends to function as an umbrella over the other methods. These constraints can be changed, also a restriction imposed by one constraint may allow freedoms from another. Lessig maintains that before the internet these constraints remained in balance with each other in regulating copying of creative works.

However, government support of etabilished companies with an older form of doing business would preclude innovation induced competition and overall progress. Lessig says it best ‘ it is the special duty of policy makers to guarranttee that protection ot become a deterrant to progress’ He specifies that his argument is not about justification of protection of copyrights but the effects of changing the law regarding copyright in the face of the Internet. In this regard he brings the example of the undoreseen effects on the environment of using the chemical pesticide DDT despite its its initial promise for commercial agriculture. Following this allusion he calls for an almost environmentalist awareness for the future of the creative environment.

Copyright has changed from covering just books, maps and charts to any work today that has a tangible form including music to architecture and drama and software. Today it gives the copyright holder the exclusive right to publish the work and control over any copies of the work as well as any derivative work. Additionally, there is no requirement to register a work to get a copyright, it is automatic, whether or not you make a copy available for others to copy. Copyright law does not distinguish between transformative use of a work and duplication or piracy. The change in copyright scope today means that law regulates publishers, users, and authors, simply because all they are all capable of making copies. Before the internet, copies of any work were the trigger for copyright law, but Lessig raises the point of whether copies should always be the trigger, especially when considering the way digital media sharing works.

In 1831 the term if copyright increased from a maximum of 28 years to a maximum of 42 years in 1909 the renewal term was extended from 14 years to 28 years. Beginning in 1962, the term of existing copyright was extended eleven times in the last 40 years. After 1976 any works created were subject to only one term of copyright, the maximum term, which was the life of the author plus fifty years, or seventy five years for corporations. According to Lessig the public domain becomes orphaned by these changes to copyright law. In the past thirty years the average term has tripled and has gone from about 33 years to 95 years.

There are uses of copyrighted material that may involve copying that do not invoke copyright law, these are deemed fair uses. Fair use law denies the owner any exclusive right over such fair uses for public policy. The internet shifts the use of digital creative property, to one that is now regulated under copyright law. There is almost no use that is presumptively unregulated.

Relatively recent changes in technology and copyright law have dramatically expanded the impact of copyright in five different dimensions:

• The duration increased from an average of 32.2 years to 95 (for copyrights owned by corporations) between 1974 and 2004, and it may yet be extended further, in violation of the constitutional requirement that the exclusive rights be "for limited times".

• The scope has increased from regulating only publishers to now regulating just about everyone.

• The reach has expanded, because computers make copies with every view, and these copies are presumptively regulated.

• The control the copyright holder has over use has expanded dramatically, using the Digital Millennium Copyright Act to prosecute people with software that could defeat the limits built into the code used to distribute the product. The latter may limit how many times a person can view the material, whether copy and paste is allowed, whether and how much can be printed, and whether the copy can be loaned or given to anyone else.

• Increases in the concentration and integration media ownership provides unprecedented control over political discourse and the evolution of culture. "[F]ive companies control 85 percent of our media sources. ... [F]our companies control 90 percent of the nation's radio advertising revenues. ... [T]en companies control half of the nation's [newspapers]. ... [T]en film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue."

Lessig argues that some of these changes benefited society as a whole. However, the combined effects of the changes in these five dimensions has been to restrict rather than promote the Progress of Science and useful Arts, in apparent violation of the constitutional justification for copyright law. The negative impact on creativity can be seen in numerous examples throughout this book. A stark example of its impact on 'political discourse is the refusal by the major TV networks to run ads critical of the Bush administration's claims of Saddam Hussein's weapons of mass destruction during the period prior to the US invasion of Iraq in 2003, enforced by Supreme Court decisions that give stations the right to choose what they will and will not run. Lessig claims that this kind of environment is not democratic and that at no point in our history have we had fewer "legal right to control more of the development of our culture than now."

Outline

The following summarizes the different sections of the book.

Preface

Lessig insists that the future of our society is being threatened by recent changes in US law and administration, including decisions by the US Federal Communications Commission that allow increased Concentration of media ownership. "[J]ust as a free market can be perverted ..., so too can a free culture be queered by extremism in the property rights that define it. ... It is against that extremism that this book is written."

Introduction

Prior to the invention of the airplane, US law held that ownership of land included all the subsurface to the center of the earth and all the space above to an indefinite extent. In 1946 the US Supreme Court decided that airplanes could fly over a person's land without paying a fee, even if it allegedly caused some of the landowner's chickens to kill themselves from fright.

By contrast, the development of FM radio has been stunted to the present day by successful lobbying efforts of RCA and other companies in AM radio to "castrate FM" through decisions by the US Federal Communications Commission to limit the power of FM broadcasting. Companies involved with AM radio believed they benefited by suppressing the competitive threat of this superior technology. The successful efforts of the AM lobby has deprived consumers to the present day of the superior sound quality that would have been achieved through full use of FM technology.

The Internet presents a grave threat to the hegemony of the entire news and entertainment industry -- "what Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war". Lessig says that

"the law's response to the Internet has massively increased the effective regulation of creativity in America." Increasingly, we must ask "for permission first. Permission ... is not often granted to the critical or the independent. ... We allow this ... because the interests most threatened are among the most powerful players in our depressingly compromised process of making law."

Chapter 1. Creators

The first commercial success of Micky Mouse came with Steamboat Willie, released in 1928. In part, it parodied the silent film Steamboat Bill, Jr., released earlier that year by Buster Keaton. Under current US law, Steamboat Willie might be challenged for copyright violation as a "derivative work" of Steamboat Bill, Jr. This fact has a chilling effect on creativity, serving to reduce competition to the established media companies, as suggested by the subtitle to the original hardback edition of Free Culture.

One of the most vigorous markets for comics is in Japan, where "Some 40 percent of publications are comics, and 30 percent of publication revenue derives from comics." One of the driving forces in creating this dynamic market is doujinshi, which is a kind of copycat, except that to qualify as doujinshi, "the artist must make a contribution to the art he copies ... . Doujinshi are plainly 'derivative works.'" However, the Doujinshi artists almost never get the permission of those who own the works they modify.

Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga [comics] flourishes. ... 'The early days of comics in America are very much like what's going on in Japan now ... . American comics were born out of copying each other ... . That's how [the artists] learn to draw -- by going into comic books and not tracing them, but looking at them and copying them". ... Does piracy here hurt the victims of the piracy, or does it help them? Would lawyers fighting this piracy help heir clients or hurt them?

And would the US have a more vibrant industry in creating comics if the law were not used as often here to punish and intimidate small competitors to the big business producing comics?

Chapter 2. "Mere Copyists"

In 1839, Louis Daguerre invented the first practical technology for producing what we could call 'photographs.' [However, t]he technological change that made mass photography possible didn't happen until 1888 ... . George Eastman ... developed flexible, emulsion-coated paper film and placed rolls of it in small, simple cameras: the Kodak. ... [A]nyone could take pictures. ... Eastman's camera first went on sale in 1888; one year later, Kodak was printing more than six thousand negatives a day. ... What was required for this technology to flourish? Obviously, Eastman's genius was an important part. But also important was the legal environment ... . For early in the history of photography, there was a series of judicial decisions that could well have changed the course of photography substantially. Courts were asked whether the photographer ... required permission before he could capture and print whatever image he wanted. Their answer was no. ... Fortunately for Mr. Eastman, and for photography in general, these early decisions went in favor of the pirates. In general, no permission would be required ... . Freedom was the default. We can only speculate about how photography would have developed had the law gone the other way. If the presumption had been against the photographer, then the photographer would have had to demonstrate permission. Perhaps Eastman Kodak would have had to demonstrate permission, too, before it developed the film ... . After all, if permission were not granted, then Eastman Kodak would be benefiting from the 'theft' committed by the photographer. Just as Napster benefited from the copyright infringements committed by Napster users ... . We could imagine the law requiring that some form of permission be demonstrated before a company developed pictures. We could imagine a system developing to demonstrate that permission. But though we could imagine this system of permission, it would be very hard to see how photography could have flourished as it did ... . [N]othing like that growth in a democratic technology of expression would have been realized.'

The new field of media literacy is developing to help people understand how to construct and deconstruct the flow of images in video.

'"A growing field of academics and activists see [media literacy] as crucial to the next generation of culture. ... [F]ew of us have a sense of how media works, how it holds an audience or leads it through a story, how it triggers emotion or builds suspense. ... [O]nly a very few people can write with this [visual media] language, and the rest of us are reduced to being read-only." John Seely Brown, former chief scientist at Xerox, expressed concern "about the learning that kids can do, or can't do, because of the law. [We need to] understand how kids who grow up digitally think and want to learn. ... We're building an architecture [including media literacy and the Internet] that unleashes 60 percent of the brain [and] a legal system that closes down that part of the brain.'

This is not only about education: It's also about the nature of democracy. Web-logs (blogs) "are arguably the most important form of unchoreographed public discourse that we have. ... Our democracy has atrophied. Of course we have elections ... . But democracy has never been about elections. Alexis de Tocqueville, the nineteenth-century French lawyer who wrote the most important account of early ' Democracy in America'" was more fascinated by the jury than elections, because ordinary people in juries deliberated. They "argued about the 'right' result; they tried to persuade each other of the 'right' result".

Blogs have

'a different life cycle [than] the mainstream media. The Trent Lott affair is an example. When Lott 'mispoke', ... essentially praising Strom Thurmond's segregationist policies, he calculated correctly that this story would disappear from the mainstream press within forty-eight hours. ... But ... [t]he bloggers kept researching the story. ... In the end, Lott was forced to resign ... . Dave Winer [said], 'I think you have to take the conflict of interst' out of journalism. ... These conflicts become more important as the media becomes more concentrated ... . A concentrated media can hide more from the public than an unconcentrated media. ... The writing of ideas, arguments and criticisms [in blogs] improves democracy.'

Chapter 3. Catalogs

In the fall of 2002, Jesse Jordan was a freshman at Rensselaer Polytechnic Institute (RPI). While studying search engine technology, he fixed a bug in the Microsoft file-sharing system that substantially improved the efficiency and effectiveness of a search engine written by someone else. He started it running in October, indexing files that RPI faculty, staff and students had in their public folders, available to others within RPI. By March, he had indexed over a million files, roughly a quarter of which happened to be music. In April, Jesse was sued by the Recording Industry Association of America (RIAA), claiming Jesse was a pirate. His crime was improving a search engine that someone else had created that used a file-sharing system created by Microsoft. RIAA claimed (a) he was guilty of more than one hundred specific copyright infringements and (b) he owed RIAA $150,000 per infringement for a total of $15,000,000. Similar lawsuits were brought against 3 other students, one at at each of RPI, Michigan Technical University, and Princeton. RIAA was asking the courts to award them "close to $100 billion -- six times the total profit of the film industry in 2001." RIAA agreed to settle if Jesse would admit guilt and give them everything he had saved for college -- $12,000. Jesse's lawyer explained that fighting this would cost at least $250,000. Even if he won, he could not recover that money, and his family would be bankrupt.

'The recording industry insists this is a matter of law and morality. ... Where's the morality in a lawsuit like this? ... The RIAA is an extremely powerful lobby. The president of the RIAA is reported to make more than $1 million per year. Artists, on the other hand, are not well paid. ... There are plenty of ways for the RIAA to affect and direct policy. ... On June 23, Jesse wired his savings to the lawyer working for the RIAA. The case against him was then dismissed.

'

Copyright law provides an exemption for "fair use", and many educational uses in the US are "fair". However, there is sufficient ambiguity in the law to make the RIAA's threat credible.

Chapter 4. "Pirates"

Lessig advises that "the history of the content industry is a history of piracy. Every important sector of the 'big media' today -- file, records, radio, and cable TV -- was born of a kind of piracy so defined." This includes the film industry of Hollywood who used piracy in order to escape the controls of Thomas Edison's patents.

Simlilarly, the record industry grew out of piracy due to a loophole in the law permitting composers exclusivity to copies of their music and its public performance, but not over reproduction via the new phonograph and player piano technologies. Composers and publishers were unhappy about this "piracy" and complained that the recordings "were sponging off the toil, the work, the talent, and the genius of American composers". People associated with the new recording industry replied that

the introduction of automatic music players has not deprived any composer of anything he had before their introduction.Rather, the machines increased sales of sheet music. ... [T]he job of Congress was 'to consider first the interests of [the public] ... . The law soon resolved this battle in favor of the composer and the recording artist [by giving] recording artists a right to record the music, at a price set by Congress, once the composer had allowed it to be recorded once. ... This is an exception within the law of copyright [because copyright owners are free to charge whatever they want for other copy rights]. [I]n effect, the law subsidizes the recording industry through a kind of piracy -- by giving recording artists a weaker right than it otherwise gives creative authors. ... Congress [feared that] the monopoly rights of holders, and that that power would stifle follow-on creativity. While the recording industry has been quite coy about this recently, historically it has been quite a supporter [of these limited rights, arguing that] performers need unhampered access to musical material on nondiscriminatory terms. ... [T] result [of these limits] has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.

'

'Radio was also born of piracy. When a radio station plays a record on the air, ... it is not only performing a copy of the composer's work [but also] a copy of the recording artist's work." However, the law only requires the radio station to pay the composer (or copyright holder) and not the recording artist. If certain recording artists could charge the radio stations, their work might be played less often, and they might lose more in sales of CDs than they got from the radio stations. However, "the law usually gives the creator the right to make this choice.

'

'Cable TV was also born of a kind of piracy. When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content they echoed to their customers. ... Cable companies were thus Napersterizing broadcasers' content, but more egregiously than anything Napster ever did -- Napster never charged for the content it enabled others to give away. Broadcasters and copyright owners were quick to attack this theft. ... Congress resolved this question in the same way it resolved the question about record players and player pianos. ... [T]he price [cable] would have to pay was not set by the copyright owner [but] by law, so the broadcasters couldn't exercise veto power over the emerging technologies of cable. These separate stories sing a common theme. [E]very industry affected by copyright today is the product and beneficiary of a certain kind of piracy. ... The list is long and could well be expanded. Every generation welcomes the pirates from the last ... until now.

'

Chapter 5. "Piracy"

Lessig emphasizes the role of copyright law, pointing out that as it stands, copyright law impacts all kinds of piracy, and hence is a part of the piracy war that challenges free culture. On the one hand, copyright supporters indiscriminately recognize cultural content as sharing the same attributes as tangible property. On the other hand, creators shun the notion of having their intellectual property at the disposal of pirates, and so agree to delimit commonality through strict copyright laws. Ultimately, Lessig calls for changes in US copyright law that balance the support of intellectual property with cultural freedom.

'Italic textThere is piracy of copyrighted material. ... All across the world, but especially in Asia and Eastern Europe, there are businesses that do nothing but take other people's copyrighted content, copy it, and sell it -- all without the permission of a copyright holder. The recording industry estimates that it loses about $4.6 billion every year to physical piracy (that works out to one in three CDs sold worldwide). ... This piracy is wrong.Italic text

' However,

' "for the first one hundred years of the American Republic, America did not honor foreign copyrights. We were born, in this sense, a pirate nation."

'

'"[W]e could try to excuse this piracy by noting that in any case, it does no harm to the industry. The Chinese who get access to American CDs at 50 cents a copy are not people who would have bought those American CDs at $15 a copy. So no one really has less money". "But as the examples from the four chapters that introduced this part suggest, even if some piracy is plainly wrong, not all 'piracy' is. ... Many kinds of 'piracy' are useful and productive, to produce either new content or new ways of doing business. Neither our tradition nor any tradition has ever banned all 'piracy'." "For (1) like the original Hollywood, [peer-to-peer] sharing escapes an overly controlling industry'; and (2) like the original recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling the content that is shared on p2p services." "The key to the 'piracy' that the law aims to quash is a use the 'rob[s] the author of [his] profit.' ... [W]e must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit. ... File sharers share [four] different types of content.":

A. Downloading instead of purchasing.

B. Sampling before buying.

C. Accessing copyrighted material that is no longer sold or that they would not otherwise purchase.

D. Obtaining material that is not copyrighted or that the copyright owner wants to give away.

"From the perspective of the law, only type D sharing is clearly legal. From the perspective of economics, only type A sharing is clearly harmful. Type B sharing is illegal but plainly beneficial. Type C sharing is illegal, yet good for society (since more exposure to music is good) and harmless to the artist (since the work is not otherwise available)."

' In 1981, the record industry blamed a drop in sales on pirating using cassette tapes. The following year, the industry had a record turnaround. A researcher concluded that the drop had been due to stagnation in musical innovation at the major labels.

'"The question is ... how harmful type A sharing is, and how beneficial the other types of sharing are. ... In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 million to 803 million units; revenues fell by 6.7 percent. ... In the same period ... 2.1 billion CDs were downloaded for free. Thus, although 2.6 times the total number of CDs sold were downloaded for free, sales revenues fell by just 6.7 percent. ... If every download were a lost sale [as the industry claimed] then the industry would have suffered a 100 percent drop in sales ..., not a 7 percent drop. If 2.6 times the number of CDs sold were downloaded for free, ... then there is a huge difference between 'downloading song and stealing a CD.'" "These are the harms ... . What of the benefits? ... Type C sharing ... is very much like used book stores ... . [I]f you think type C sharing should be stopped, do you think that libraries and used book stores should be shut as well? ... Likewise, [sharing work in the public domain] benefits society with no legal harm to authors at all. If efforts to solve the problem of type A sharing destroys ... type D sharing, then we lose something important to protect type A content." "'Isn't the target just .. type A sharing?' ... When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court [said] Napster had to push the infringement 'down to zero.' If 99.4 percent is not good enough, then this is a war on file-sharing technologies, not a war on copyright infringement." Around 1980, the MPAA sued to block the sales of VCRs in the US. The Supreme Court decided, "Congress has the constitutional authority ... to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology."

'

'"If we put these cases together, a pattern is clear:

Case	Whose value was 'pirated'	Response of the courts	Response of Congress
Recordings	Composers	No protection	Statutory license
Radio	Recording artists	N/A	Nothing
Cable TV	Broadcasters	No protection	Statutory license
VCR	Film creators	No protection	Nothing

"When you think across these examples, and the other examples that make up the first four chapters of this section, this balance makes sense. Was Walt Disney a pirate? ... Should tools that enable others to capture and spread images in a way to cultivate or criticize our culture be better regulated? Is it really right that building a better search engine should expose you to $15 million in damages? ... [T]he Supreme Court has stated, copyright 'has never accorded the copyright holder complete control over all possible uses of his work.' ... [T]his balancing has historically been done after a technology has matured".

"We should be doing the same thing today. ... No doubt the network should not become a tool for 'stealing' from artists. But neither should the law become a tool to entrench one particular way in which artists (or more accurately, distributors) get paid. ... This will require changes in the law ... . These changes should ... balance the protection of the law against the strong public interest that innovation continue. This is especially true when a new technology enables a vastly superior mode of distribution. And this p2p has done. ... Yet these 'potential public benefits ... could be delayed in the P2P fight.'"

'

"Property"

A copyright is an odd kind of property, because it limits free use of ideas and expression. Chapters 6-9 offer four stories to help illustrate what it means to say that a copyright is property.

Chapter 6. Founders

In the majority of European countries, copyright law began with the efforts of spiritual and temporal authorities to control the production of printers. This was often done by granting monopolies. "Henry VIII granted a patent to print the bible". In England, the Crown's practice of handing out monopolies became quite unpopular and was one of the issued that motivated the English Civil War of 1642-1651.

As late as 1774, publishers believed a copyright was forever. This was in spite of the fact that "[t]he Statute of Anne [of 1710 tried to limit this by declaring] that all published works would get a copyright term of fourteen years, renewable once if the author was alive, and that all works already published ... would get a single term of twenty-one additional years." (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.) In spite of the Statute of Anne, publishers still insisted they had a perpetual copyright under common law. This claim was controversial. "Many believed the power the [publishers] exercised over the spread of knowledge was harming that spread". In 1774 the House of Lords, functioning like the Supreme Court of the United States today determined that in granting a copyright, "The state would protect the exclusive right [to publish], but only so long as it benefited society." "After 1774, the public domain was born.

Chapter 7. Recorders

A film made by Jon Else in 1990 includes a 4.5 second segment with a television in a corner playing The Simpsons. Before releasing the film, Else contacted The Simpsons's creator, Matt Groening for copyright permission. Groening agreed but asked Else to contact the producer, Gracie Films. They agreed but asked Else to contact their parent company, Fox. When he contacted Fox, someone there claimed that Groening didn't own The Simpsons, and Fox wanted $10,000 to allow him to distribute his documentary with The Simpsons playing in the background of a 4.5 second scene about something else. "Else was sure there was a mistake. He worked his way up to someone he thought was a vice president for licensing, Rebecca Herrera. She confirmed that copyright permission would cost $10,000 for that 4.5 second clip in the corner of a shot, and added, "And if you quote me, I'll turn you over to our attorneys."

"Else's use of just 4.5 seconds of an indirect shot of a Simpson's episode is clearly fair use and therefore does not require permission from anyone. However, "[b]efore our films can be broadcast, the network requires that we buy Errors and Omissions insurance", which would be difficult to get without copyright permission for that shot. Else spoke with a professor in the "Stanford Law School ... who confirmed that it was fair use, [but] Fox would 'depose and litigate you to within an inch of your life,' regardless of the merits of [Else's] claim. ... [I]t would boil down to who had the bigger legal department and deeper pockets," Else or Fox.

Chapter 8. Transformers

In 1993, Starwave, Inc., produced a retrospective on compact disc (CD-ROM) of the career of Clint Eastwood, who had made over 50 films as an actor and director. The retrospective included short excepts from each of Eastwood's films. Because this was not obviously "fair use", they needed to get clear rights from anyone who might have a copyright claim to those film clips, actors, composers, musicians, etc. CD was a new technology, not mentioned in any of the original contracts with the people involved. The standard rate at that time for that kind of use of less than a minute of film was about $600. A year later, they had collected signatures from everyone they could identify in the clips they had chosen, "and even then we weren't sure whether we were totally in the clear."

Similarly, in "2003, DreamWorks Studios announced an agreement with Mike Myers and Austin Powers [to] acquire the rights to existing motion picture hits and classics, write new storylines and -- with the use of state-of-the-art digital technology -- insert Myers and other actors into the film, thereby creating an entirely new piece of entertainment."

These two examples expose a major threat to the creativity of our society: 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 (as indicated in chapter 2 of this book). 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". (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."

Chapter 9. Collectors

"Early in American copyright law, copyright owners were required to deposit copies of their work in libraries. These copies were intended both to facilitate the spread of knowledge and to assure that a copy of the work would be around once the copyright expired ... . These rules applied to film as well. But in 1915, the Library of Congress made an exception for film. Film could be copyrighted so long as such deposits were made. But the filmmaker was then allowed to borrow back the deposits -- for an unlimited time at no cost. ... Thus, when the copyrights to the films expire, there is no copy held by any library. ... The same is generally true about television", and radio, and the Internet. "After the commercial life of creative property has ended, our tradition has always supported a second life as well. ... In this second life, the content can continue to inform even if that information is no longer sold. The same has always been true of books. A book goes out of print very quickly (the average today is after about one year). ... that second life is extremely important to the spread and stability of culture." "Perhaps the single most important feature of the digital revolution is that for the firt time since the Library of Alexandria, it is feasible to imagine constructing archives that hold all the culture produced or distributed publicly. ... But lawyers' costs remain", substantially limiting the value of archives now being created.

Chapter 10. "Property"

Jack Valenti, President of the Motion Picture Association of America from 1966 to 2004 insisted that "'Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation.' Valenti ... speaks for an industry that is ... fighting to restore the tradition [of perpetual copyright] that the British overturned in 1710" and that the framers of the US Constitution adopted in giving Congress "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."

Relatively recent changes in technology and copyright law have dramatically expanded the impact of copyright in five different dimensions:

• The duration increased from an average of 32.2 years to 95 (for copyrights owned by corporations) between 1974 and 2004, and it may yet be extended further, in violation of the constitutional requirement that the exclusive rights be "for limited times".

• The scope has increased from regulating only publishers to now regulating just about everyone.

• The reach has expanded, because computers make copies with every view, and these copies are presumptively regulated.

• The control the copyright holder has over use has expanded dramatically, using the Digital Millennium Copyright Act to prosecute people with software that could defeat the limits built into the code used to distribute the product. The latter may limit how many times a person can view the material, whether copy and paste is allowed, whether and how much can be printed, and whether the copy can be loaned or given to anyone else.

• Increases in the concentration and integration media ownership provides unprecedented control over political discourse and the evolution of culture. "[F]ive companies control 85 percent of our media sources. ... [F]our companies control 90 percent of the nation's radio advertising revenues. ... [T]en companies control half of the nation's [newspapers]. ... [T]en film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue."

Lessig argues that some of these changes benefited society as a whole. However, the combined effects of the changes in these five dimensions has been to restrict rather than promote the Progress of Science and useful Arts, in apparent violation of the constitutional justification for copyright law. The negative impact on creativity can be seen in numerous examples throughout this book.

A stark example of its impact on political discourse is the refusal by the major TV networks to run ads critical of the Bush administration's claims of Saddam Hussein's weapons of mass destruction during the period prior to the US invasion of Iraq in 2003, enforced by Supreme Court decisions that give stations the right to choose what they will and will not run.

"This is not the environment for a democracy."

"Never in our history have fewer had the legal right to control more of the development of our culture than now."

Puzzles

Chapter 11. Chimera

A chimera is an animal (e.g., human) with double the standard DNA formed by the fusion of two embryos. Chimeras were discovered when genetic testing of mothers failed to match the DNA of a child. Further testing revealed that the chimeric mothers had two sets of DNA.

In "'the copyright wars,' ... we're dealing with a chimera. [I]n the battle over ... 'What is p2p sharing?' both sides have it right, and both sides have it wrong. One side says, 'File sharing is just like two kids taping each others' records' ... . That's true, at least in part. ... But the description is also false in part. [M]y p2p network [gives anyone] access to my music. [I]t stretches the meaning of 'friends' beyond recognition to say 'my ten thousand best friends' ... . According to the RIAA, ... if I download a ten-song CD, I'm liable for $1,500,000 in damages. ... The law and technology are being shifted to give content holders a kind of control ... that they have never had before. And in this extremism, many an opportunity for new innovation and creativity will be lost. ... My focus ... is on the commercial and cultural innovation that this war will also kill."

Chapter 12. Harms

"To fight 'piracy', to protect 'property', the content industry has launched a war. Lobbying and lots of campaign contributions have now brought the government into this war. As with any war, ... [t]here will be many consequences ... . I want to describe just three."

Constraining Creators

"[T]he next ten years ... will see an explosion of digital technologies [that] will enable almost anyone to capture and share content. Capturing and sharing content ... is what humans have done since the dawn of man. ... But ... digital technology [increases its] fidelity and power ... . You could send an e-mail telling someone about a joke you heard on Comedy Central, or you could send the clip. You could write an essay about the inconsistencies in the arguments of [a] politician ... or you could make a short film that puts statement against statement." However, current law makes uses like these of digital technology presumptively illegal. "It is impossible to get a clear sense of what's allowed and what's not, and at the same time, the penalties for crossing the line are astonishingly harsh. The four students ... were threatened by the RIAA [chapter 3] ... with a $98 billion lawsuit ... . Yet WorldCom -- which defrauded investors of $11 billion, [with] a loss to ... market capitalization of over $200 billion -- received a fine of a mere $750 million. ... We make it impossible for businesses to rely on the public domain, because the boundaries ... are designed to be unclear. ... [F]air use in America simply means the right to hire a lawyer ... .

Constraining Innovators

"The story of the last section was a crunchy-lefty story -- creativity quashed, artists who can't speak, ... . But there is an aspect of this story that is not lefty", because the arguments of this book hold if we replace "free culture" everywhere with "free market". The current regulation of the law "simply enables the powerful industries of today to protect themselves against the innovators of tomorrow." Lessig's Future of Ideas discussed MP3.com. "In January 2000, the company launched ... my.mp3.com." This would allow users to upload music to a personal lockbox, which they could access elsewhere. ... "Nine days after MP3.com launched its service, the five major labels, headed by the RIAA, brought a lawsuit against MP3.com. ... Nine months later, a federal judge found MP3.com to have been guilty of willful infringement with respect to Vivendi ... with a fine of $118 million. ... Vivendi purchased MP3.com just about a year later. ... Vivendi [then sued] the lawyers who had advised [MP3.com] that they had a good faith claim that the service they wanted to offer would be considered legal ... . This strategy is not just limited to lawyers. In April 2003, Universal and EMI [sued] Hummer Winblad, [a] venture capital firm (VC) that had funded Napster, [alleging] that the VC should have recognized the right of the content industry to control how the industry should develop [and] should be held personally liable for funding a company whose business turned out to be beyond the law."

"The uncertainty of the law is one burden on innovation. [Another] is the effort by many in the content industry to use the law to directly regulate the technology of the Internet so it better protects their content."

"There is one more obvious way in which this war has harmed innovation ... . As chapter 10 details, when new technologies have come along, Congress has struck a balance to assure that the new is protected from the old. But that ... deference to new technologies has now changed. ... [B]oth the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old." One example is Internet radio, which has been burdened by onerous regulations and royalty fees not applied to broadcasters. With both FM radio and Internet radio, the spread of a vastly superior technology was crippled by the law.

Corrupting Citizens

"According to The New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transform 20 percent of Americans into criminals. 'If you can treat everyone as a putative lawbreaker,' von Lohmann explains, 'then ... a lot of basic civil liberty protections evaporate'."

Balances

'"A war about copyright rages all around -- and we're all focusing on the wrong thing. ... Primed with plenty of lobbyists' money, [policy makers] are keen to intervene ... . But the problem they perceive is not the real threat ... . In the two chapters that follow, I describe one small brace of efforts, so far failed, to ... refocus this debate."

'

Chapter 13. Eldred

This chapter summarizes Eldred v. Ashcroft. The lead petitioner, Eric Eldred, wanted to make public domain works freely available on the Internet. He was particularly interested a work that was slated to pass into the public domain in 1998. However, the Sonny Bono Copyright Term Extension Act (CTEA) meant that this work would not be in the public domain until 2019 -- and not even then if Congress extended the term again, as it had eleven times since 1962. Further extension seems likely, because it makes good business sense for organizations owning old works that still generate revenue to spend a portion of that money on campaign contributions and lobbying to extend the terms even further. "Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.

Lead council in Eldred v. Ashcroft was Lessig. He lost this case due, he says, to a strategic blunder in arguing that repeated extensions effectively granted perpetual copyright in violation of the constitutional specification that copyrights and patents be "for limited times".

This was a high profile case, and many different groups had filed briefs.

'"[T]he Nashville Songwriters Association wrote that the public domain was nothing more than 'legal piracy.'" One brief "was signed by seventeen economists, including five Nobel Prize winners".

'

Lessig believes that if he had instead argued that this extension caused net harm to the US economy and culture, as numerous people had advised, he could have won. Lessig insists that, "The real harm is to the works that are not famous, not commercially exploited, and no longer available as a result."

The structure of current law makes it exceedingly difficult for someone who might want to do something with an old work to find the copyright owner, because no central list exists. Because these old works no longer seem commercially viable to the copyright holder, many are deteriorating. Many old "films were produced on nitrate-based stock, and nitrate stock dissolves over time. They will be gone, and the metal canisters in which they are now stored will be filled with nothing more than dust."

Chapter 14. Eldred II

The day

'Eldred v. Ashcroft was decided, Lessig wrote an op-ed piece, which The New York Times printed. In it, Lessig proposed that to extend a copyright beyond 50 years, the copyright owner would have to register it and pay $1. The idea received strong support. Steve Forbes endorsed it in an editorial, and Rep. Zoe Lofgren of California had the Public Domain Enhancement Act drafted to incorporate the idea. Jack Valenti and the MPAA strongly opposed it. "[W]hen the copyright owners oppose [such] a proposal ..., then, finally, there is an example that lays bare the naked self-interest driving this war. ... It is another step to assure that the public domain will never compete ... and that there will be no use of content that ... does not require their permission first. ... It is as if the law made airplanes trespassers. ... The future will be controlled by this dead (and often unfindable) hand of the past."

'

Conclusion

Millions of people worldwide are dying of AIDS. Most of those are in poor countries. AIDS is no longer a death sentence for individuals who can afford between $10,000 and $15,000 per year, but few in poor countries can afford this. The manufacturing cost of those drugs is a tiny fraction of the market price, and some are available at much lower prices in a few poor countries. In 1997 the US government threatened South Africa with possible trade sanctions if it attempted to obtain the drugs at the price at which they were available in these few other poor countries using "parallel importation", generally permitted under international trade law.

We need to support the rights of companies to charge whatever they want for innovative products, and we need patents to encourage others to invest in the research needed to develop such products. However, offering AIDS drugs at a much reduced price in Africa would not directly impact the profits of pharmaceutical companies.

Nevertheless, drug companies lobbied the US government to pressure South Africa on this because of fear of a grandstanding politician who would call their company presidents

' "before a Senate or House hearing and ask, 'How is it you can sell this HIV drug in Africa for only $1 a pill, but the same drug would cost an American $1,500?' Because there is no 'sound bite' answer to that question, its effect would be to induce regulation of prices in America. The drug companies thus avoid this spiral by avoiding the first step."

'

'"A sensible patent policy could endorse and strongly support the patent system without having to reach everyone everywhere in exactly the same way. ... For most of our history, both copyright and patent policies were balanced in just this sense. But we as a culture have lost this sense of balance".

'

'"In August 2003, a fight broke out in the United States about a decision by the World Intellectual Property Organization to cancel a meeting. At the request of a wide range of interests, WIPO had decided to hold a meeting to discuss 'open and collaborative projects to create public goods.' These are projects that have been successful in producing public goods without relying exclusively upon a proprietary use of intellectual property. Examples include the Internet, ... the World Wide Web, ... the Public Library of Science, ... single nucleotide polymorphisms, ... the Global Positioning System, ... and 'open source and free software' (FOSS). ... Microsoft ... is wary of discussion of [FOSS] ... . [However], to support [FOSS] is not to oppose copyright [as FOSS] is not software in the public domain. [O]wners of [FOSS] insist quite strongly that the terms of their software license be respected ... . Microsoft ... succeeded in getting the United States government to veto the meeting."

'

'The US government's reason for opposing the meeting was surprising. "Lois Boland, acting director of international relations in the U.S. Patent and Trademark Office, explained ..., 'To hold a meeting ... to disclaim or waive [intellectual-property] rights seems to us to be contrary to the goals of WIPO.' These statements are astonishing ... . That somehow, WIPO's objective should be to stop an individual from 'waiving' or 'disclaiming' and intellectual property right. ... There is a history of just such a property system ... . It is called 'feudalism'. The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces.

'

'"An insider from Hollywood ... reports 'an amazing conversation ... . They've got extraordinary [old] content that they'd love to use but can't because they can't begin to clear the rights. They've got scores of kids who could do amazing things with the content, but it would take scores of lawyers to clean it first.' ... Yet on the other side of the Atlantic, the BBC has just announced that it will build a 'Creative Archive,' from which British citizens can download BBC content, and then rip, mix, and burn it.' And ... Brazil ... has joined with the Creative Commons to release content and free licenses".

'

Afterword

The balance of this book maps out what might be done about the problems described earlier. This is divided into two parts: what anyone can do now and what requires help from lawmakers.

Us, Now: If current trends continue, 'cut and paste' will become 'get permission to cut and paste'.

Rebuilding Freedoms Previously Assumed: Examples

In the past, if you browsed works by Karl Marx in a library or bookstore, you didn't need to worry about being harassed for reading forbidden literature. The 'privacy' of your browsing habits was assured, because monitoring was too expensive. With the Internet, the cost of tracking browsing has become so tiny that it's done routinely by virtually every major commercial presence on the web and by many other organizations.

"A similar story could be told about the history of the free software movement." With early computers, some software was free, partly because you couldn't run Data General software on IBM equipment. Richard Stallman liked this and was not happy when it began to disappear around 1980. This drove him to found the GNU project in 1983, whose first project was to produce a free, open source operating system that ultimately became Linux. Stallman used copyright law to build a world of software that must be kept free.

Another very recent example is the way academic and scientific journals are produced. As traditional journal became electronic, the publishers demanded that libraries not provide access to the general public. This has led to the development of new peer reviewed journals published on the web without any copyright restrictions.

Rebuilding free culture: One idea

Creative Commons provides text for six different copyright licenses with "some rights reserved" requiring at minimum attribution of the copyright owner. A small number of works have been released under a Creative Commons license either concurrent with physical distribution in a bookstore or after the book passed out of print. Some people will buy a book after reading part of it on line. If the number of such people exceeds those who would have bought the book if it had not been on line, then the publisher and author make more money doing this. Releasing a book under a Creative Commons license after the book is out of print helps build the reputation of the author and could thereby increase sales of other works by that author.

Them, Soon: This chapter outlines five kinds of changes in law suggested by the analysis of this book.

1. More Formalities

REGISTRATION AND RENEWAL: All copyrighted work should be registered to lower the cost for someone who wants to purchase rights. This could be done by private companies the way domain name registration is managed today: The Copyright Office may serve as the central registry with registration managed by private firms.

MARKING: Originally, failure to include a copyright notice meant that the copyright was forfeited. This is too harsh. "The consequence instead could be that anyone has the right to use the work, until the copyright owner complains". So how should work be marked? The Copyright Office should approve a standard once the industry has developed one for a particular type of work. "The existing system ... seems designed to make things unclear."

2. Shorter Terms

"The term of copyright has gone from fourteen years to ninety-five years for corporate authors". It should be shorter. Whatever the term, it should be selected balancing four principles: It should be (1) short, (2) simple, (3) alive (i.e., require a renewal), and (4) prospective (i.e., do not authorize retrospective extension). Retrospective extension (as with the Sonny Bono Copyright Term Extension Act) cannot possibly "promote the Progress of Science and useful Arts", as required by the US Constitution; rather it is merely a gift by Congress to existing copyright owners.

3. Free Use Vs. Fair Use

The original US copyright law of 1790 gave authors 'exclusive right' to 'their writings.' In 1870, this was expanded to cover translations and dramatizations. The courts have expanded the coverage of derivative works since. "I think it's time to recognize that ... the expansiveness of these rights of derivative use no longer make sense ... for the period of time that a copyright runs. ... If Congress wants to grant a derivative work, then that right should be for a much shorter term. ... Likewise should the scope of derivative rights be narrowed [and clarified]. [T]he law should mark the uses that are protected, and the presumption should be that all other uses are not".

4. Liberate the Music--Again

The battle that got this whole war going was about music ... . The appeal of file-sharing music ... drove demand for access to the Internet more powerfully than any other single application. ... The aim of copyright, with respect to content in general and music in particular, is to create incentives for music to be composed, performed, and, most importantly, spread. ... As I described in chapter 5, [file sharing networks] enable four different types of sharing:

A. ... as substitutes for purchasing ...

B. ... to sample on the way to purchasing ...

C. ... to access content that is no longer sold but is still under copyright or that would have been too cumbersome to buy off the Net.

D. ... to access content that is not copyrighted or that the copyright owner plainly endorses.

Any reform of the law ... must avoid burdening type D even if it aims to eliminate type A. The eagerness with which the law aims to eliminate type A, moreover, should depend upon the magnitude of type B. ... Today, file sharing is addictive ... because it is the easiest way to gain access to a broad range of content. It won't be the easiest way ... in ten years. ... Policy makers should not make policy on the basis of a technology in transition. They should make policy on the basis of where the technology is going. ... Already cell-phone services in Japan offer music (for a fee) ... . The Japanese are paying for this content even though 'free' content is available ... .

The 'problem' with [type D content] is to make sure that the technology that would enable this kind of sharing is not rendered illegal.

[For type C], the law could create a statutory license that would ensure that the artists get something from the trade in their work. For example, if the law set a low statutory rate for the commercial sharing of content that was not offered for sale by a commercial publisher, and if that rate were automatically transferred to a trust for the benefit of the artist, then businesses could develop around the idea of trading this content, and artists would benefit ... .

William Fisher ... suggests ... all content of digital transmission would (1) be marked with a digital watermark ... . (2) monitor how many items of each content were distributed. On the basis of these numbers, the (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax.

5. Fire Lots of Lawyers

"[T]he costs of our legal system are so astonishingly high that justice can practically never be done. ... It is wrong that the system works well only for the top 1 percent ... . It could be made radically more efficient, and inexpensive, and hence radically more just."

"We should ask, 'Why?' Show me how your regulation of culture ... does good. [Until then], keep your lawyers away."

Critical Reception

In a review in the The New York Times, Adam Cohen found Free Culture to be a "powerfully argued and important analysis," where Lessig argues persuasively that we are in a crisis of cultural impoverishment. However, he says that "after taking us to this point, 300 pages into his analysis," Lessig "fails to deliver," and his proposals are both "impractical and politically unattainable."

David Post argues that Lessig shows that "free culture" has always been a part of our intellectual heritage and illuminates the tension between the already created and not yet created. Although Post generally agrees with Lessig's argument, he does point out that copyrights are property rights and "property rights are, as a general rule, a good thing" and that Lessig does not do enough in his book to address this side of the debate.

Derivative works

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 [2], French, Hungarian, Italian, Polish, Portuguese [3] and Spanish es:Cultura libre (libro)#Versiones.

Editions

• US 1st hardcover edition: ISBN 1-59420-006-8
• US 1st paperback edition: ISBN 0-14-303465-0

Reference

• Lessig, Lawrence (2004). Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. http://www.jus.uio.no/sisu/free_culture.lawrence_lessig/portrait.letter.pdf. Retrieved Feb. 18, 2012. 

External links

• Official site
• Multiple Formats, searchable version available online ( html, XML, opendocument ODF, pdf (landscape, portrait), plaintext, concordance ), SiSU
• Free Culture lecture flash animation 8.6 mg see index for alternatives: http://www.eff.org/IP/freeculture/
• Washington Post review
• Purple numbered version
• Lessig Speaks at Swarthmore - Professor Lessig's lecture at Swarthmore College
• Collaborative Audio Book