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Lessig and Vaidhyanathan On Copyright and Culture

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Lawrence Lessig’s new book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, is getting quite a bit of attention. We discussed it here yesterday, where you can also hear the entire book for free.

Salon’s Farhad Manjoo takes a long look at the Lessig book as well as Siva Vaidhyanathan’s new The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System (damn, these books have long titles), which tackles similar themes:

    The Mickey-as-Machiavelli theory has been promoted most aggressively by Lawrence Lessig, a constitutional scholar at Stanford Law School. Lessig is a brilliant and eloquent opponent of the entertainment industry’s strong hand, and his fight is certainly broader than one cartoon rodent; still, Lessig clearly has Mickey on the brain. In 2002, Lessig led a constitutional challenge to the Sonny Bono Copyright Term Extension Act, the 1998 law Congress passed to extend copyright terms just as Mickey was about to enter the public domain. Lessig called it the “Mickey Mouse Protection Act”; his rallying cry was “Free Mickey!” But in court, Mickey beat Lessig. In a 7-to-2 ruling handed down last year, the Supreme Court let the copyright extensions stand. Mickey would not be freed.

    Considering his very public battles with Mickey, you’d expect Lessig to harbor a genuine animus toward the lovable rodent. But what emerges in “Free Culture,” Lessig’s latest book, is just the opposite: Lessig expresses surprising admiration for Mickey. You might even say that Lessig loves Mickey — or, at least, he loves how Mickey came to be. While Mickey may stand today as a symbol for all that is wrong with American copyright law, Lessig points out that he also serves as a powerful argument for all that was once right with the law. The mouse, who became popular as a parody of — or homage to — Buster Keaton, and whose creator was influenced by just about every icon of his day, is a testament to free culture. But a mouse like him could not come to be in today’s restrictive climate, Lessig argues. And, worse, an even better Mickey Mouse — some unimagined, perhaps yet unimaginable creation, inspired by Mickey but so much cooler — is out of the question.

    ….How can copyright law, a legal mechanism that was meant to foster creativity, stifle art? The reason is that the world’s current copyright regime, as Lessig sees it, has lost all sense of balance. Entertainment firms and their defenders think of “intellectual property” as actual, physical property. Disney thinks of Mickey as a real asset, not different, in the legal sense, from a factory. But Mickey Mouse is not a factory — he is art. And giving intellectual property the same legal status as physical property — giving art the same status as a factory — is, Lessig writes, “historically … absolutely wrong. They have never been the same. And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create. Creativity depends upon the owners of creativity having less than perfect control.”

    Creativity depends, in other words, on some measure of anarchy — a lack of control. This is the point that Siva Vaidhyanathan, a professor of communications studies at New York University, makes in his new book, “The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System.” Vaidhyanathan, who observes the debate over copyright from the point of view of political philosophy rather than the more pragmatic terrain of constitutional law, thinks of culture as an “anarchic” force. Creativity depends on a dearth of rules; a healthy culture needs a suppression of oligarchs. “Culture builds itself without leaders,” Vaidhyanathan writes. “Culture proliferates itself through consensus and revision. Culture works best when there is minimal authority and guidance.” To Vaidhyanathan, anarchy, as a force, ought to be more highly prized in society. We should not live as anarchists — anarchy “has its limits as a governing tool,” Vaidhyanathan concedes — but we ought to at least try to seek a balance between the anarchists and the oligarchs, a balance that Vaidhyanathan believes is now hard to find.

    ….the law has greatly expanded the kinds of “reuses” that artists need to pay for. The right to create something new from something old — what some people might call the right to be inspired — is now an expensive, over-lawyered venture. This might not hurt the Disney company, but it sure hurts the rest of us. While Disney benefited from the borrowing of previous works, the company now denies us the right to borrow from it. It has slapped together layers of law and code to tightly pin down what Lessig calls “Walt Disney Creativity” — “a form of expression and genius that builds upon the culture around us and makes it something different.”

    ….What’s really crazy about this hyperextension of copyright law is that, even in cases where it’s misapplied, it is protected by a layer of code — copy-protection schemes that the law has deemed inviolable. Humans aren’t enforcing the rules over how art can be used — machines are. If a firm decides to protect a digital movie under a restrictive digital rights management scheme, it is illegal under a law like the Digital Millennium Copyright Act to “circumvent” that scheme even if you plan to use the underlying movie in a completely legal way. Mickey may one day enter the public domain, but if Disney protects him with DRM, he won’t really be free. “This is how code becomes law,” Lessig writes. “Code becomes law; code extends law; code thus extends the control copyright owners effect.”

    ….Both Lessig and Vaidhyanathan extol the idea of “digital libraries” — collections of all kinds of media (books, movies, sound recordings) that would be available to anyone, like a city’s public library on a massive scale. Such a “perfect library,” Vaidhyanathan writes, “might have some powerful positive effects on the world. There would be no information monopolies. Everyone would have equal access to facts and poems, techniques and tirades. Citizens of all nations could test their government’s claims against other sources. If the perfect library’s indexing system became the main source of what we want to know about the world, CNN or Fox would have no advantage over small newspapers in Ghana or radio stations in Quebec. We might live in a world with diversity of thought and culture, a true free market of ideas. The perfect library could be a powerful resource for the expansion and enrichment of democracy.”

    But such libraries are nearly impossible to create today. While a real-world public library is not regulated by copyright law — books and movies and songs can be borrowed without being copied — an Internet library would face enormous regulation. Lessig writes: “Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same with music, film, or any other aspect of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore, is now inhibited by a set of rules that were written for a radically different context.”

This is all politics – these extensions and expansions fo copyright law have been enacted by Congress at the behest of the copyright industry while the people have had little knowledge of what was going on. But now the public is becoming aware of what the ramifications of copyright law are, and if the people insist on freer access to their own culture, then the politicians will have to respond. It’s up to us.

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About Eric Olsen