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Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Innovation

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Lawrence Lessig
Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Innovation
The Penguin Press
335 Pp., $22.95

People in the business of creativity must read Free Culture, Lawrence Lessig’s passionate plea for the organic spread of ideas. Subtitled “How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity,” it focuses on the clash between copyright law and file sharing.

Sex, politics and religion may be the most prominent battlefields in today’s culture wars, but the technological combat zone is easily as dramatic, suggests Lessig, a Stanford Law School professor who founded the Stanford Center for Internet and Society and chairs the Creative Commons project. In “Free Culture,” his impassioned survey of technology and the Internet, he argues that old interests are on an unnecessary collision course with new technology and suggests that the media, fearful of the consequences of file sharing, have worked to extend copyright so long they are starving the public domain.

He traces the evolution of intellectual property from the Constitution to our times, explaining how the 17-year copyright term the Framers set in that key document has increased to 95 years. Such extension hinders progress, Lessig says, crimping creativity and the naturally transformative nature of ideas.

No matter what side you are on, you will benefit from reading this. If you are engaged in music, film, television, literature and the “bricolage,” or reconfigurations of those, that the Internet enables, it will inform you of your rights and how to protect them.

According to one study, 60 million Americans had downloaded music as of fall 2002. A separate survey estimated that as of last May, 43 million had used file-sharing networks to exchange content. Understandably, file sharing has given rise to concerns about piracy, concerns Lessig shares – with caveats:

“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 owner,” he writes. “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). The MPAA (Motion Picture Association of America) estimates that it loses $3 billion annually worldwide to piracy.”

At the same time, he notes that downloading a CD is different from taking a CD from a store, let alone from corporate fraud or medical malpractice.

“The four students who were threatened by the RIAA…were threatened with a $98 billion lawsuit for building search engines that permitted songs to be copied. Yet WorldCom — which defrauded investors of $11 billion, resulting in a loss to investors in market capitalization of over $200 billion – received a fine of a mere $750 million,” he writes. “And under legislation being pushed in Congress right now, a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor’s negligently butchering a patient?”

What must be fixed is an economic system that robs the record industry of a sale. What needn’t be is a digital practice that allows people to sample wares before purchasing and provides access to hard-to-get content, copyrighted or not.

Lessig suggests that piracy actually spurs technological innovation: FM grew out of renegade AM, cable TV out of network TV. In each case, what Lessig considers cultural monopolists invoked copyright law to hoard their content and so prevent alternative, improved distribution and better technological systems.

“A free culture is not a culture without property; it is not a culture in which artists don’t get paid,” Lessig says in the preface. “A culture without property, or in which creators can’t get paid, is anarchy, not freedom. Anarchy is not what I advance here.

“Instead, 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.”

If Lessig succeeds in defusing this increasingly contentious issue, I might be able to pay my dime to freely copy material at an office supply store. When I visited a local Office Max a year ago to photocopy a review I had written for a newspaper, I was told I needed copyright clearance; even though they were my words, the piece belonged to the paper in which they were printed, apparently putting the store at risk if it allowed me to Xerox them. So I copied the piece at work – ironically, a much looser environment these days than the commercial one.

It’s not only the commercial sphere that’s shrinking. The digital one is, too. Lessig claims computer code is effectively becoming both law and enforcement. Such blurring threatens not only the notion of intellectual property – perhaps an oxymoron in the Internet age, when data are infinitely replicable – but also that of privacy. He suggests that’s because companies that market culture, particularly music, films and television, do their best to hoard their wares.

The controllers of culture, at least in the United States, work to extend copyright and patronize software manufacturers that can embed copyright-protecting code; as a sometime music critic, I receive promotional compact disks with severe warnings about copying and sharing. I won’t review these, partially because, in certain machines, the players may break. In addition, for all I know, the record company that “loaned” me the review disk will punish me if I don’t keep its product very strictly to myself — and I don’t even download, or haven’t yet. I do, however, recognize bad public relations.

Even though Lessig spends most of his time detailing what’s wrong with the vendors of culture, his ultimate goal is to improve the situation so that the notions of a free society, a free market and free culture come into alignment.

Expanding on the ideas of Harvard law professor William Fisher, he proposes that copyright law at least reflect, if not anticipate, changes in technology. He recommends that content capable of digital transmission be watermarked and that systems be developed to track how many items of this content are distributed. On the basis of those figures, he says, artists should be compensated through some form of taxation.

Would this create a new bureaucracy? How would this be enforced? Could the “dinosaurs” that market culture adapt? Lessig doesn’t have the answers. There’s no doubt, however, that the questions he raises are the right ones – and that they matter more each day. “Free Culture” is an essential book, rich in ideas that will last far longer than the technological changes society must learn to accommodate – and, perhaps, even embrace.

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