By Lawrence Lessig, Feedbooks.com, 2004, 9781594200069
Lawrence Lessig explains why the U.S. has gone from a free culture to a permissioned culture. When people talk about the U.S. falling like Rome, I don’t think they take the difference in cultures into account: Brittle cultures fail, and free cultures can sustain change.
The survivability of free cultures makes Lessig’s argument all the more relevant. I was a bit surprised he didn’t expand on this particular theme, but then, he’s concerned with intellectual property law, and not politics in general. The book is brilliant, nonetheless.
Lessig’s following argument is interesting, especially after the dotcom days when patents were the only way to raise capital. We really have entered a new phase, where IP is an idea, not a valuable object.
[k475] Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less. Ours was a free culture. It is becoming much less so.
[k509] With the Kodak, expression was possible much sooner and more simply. The barrier to expression was lowered. Snobs would sneer at its “quality”; professionals would discount it as irrelevant. But watch a child study how best to frame a picture and you get a sense of the experience of creativity that the Kodak enabled. Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before. which Eastman’s invention grew. 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, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no.
[k523] It may be that this means that the photographer gets something for nothing. Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source. 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 before an image could be captured and shared with others. Instead, permission was presumed. Freedom was the default.
[k534] Just as Napster benefited from the copyright infringements committed by Napster users, Kodak would be benefiting from the “image-right” infringement of its photographers. We could imagine the law then requiring that some form of permission be demonstrated before a company developed pictures.
I think there’s something more here. Blogs allow editing and speeches don’t. Blogs allow expression by people who fear public humiliation and group intimidation. The loud person doesn’t have the power he has in interpersonal meetings.
[k667] Enter the blog. The blog’s very architecture solves one part of this problem. People post when they want to post, and people read when they want to read. The most difficult time is synchronous time. Technologies that enable asynchronous communication, such as e-mail, increase the opportunity for communication. Blogs allow for public discourse without the public ever needing to gather in a single public place.
[k742] While there’s no doubt that your father had the right to tinker with the car engine, there’s great doubt that your child will have the right to tinker with the images she finds all around. The law and, increasingly, technology interfere with a freedom that technology, and curiosity, would otherwise ensure.
[k852] The Napsters of those days, the “independents,” were companies like Fox. And no less than today, these independents were vigorously resisted. “Shooting was disrupted by machinery stolen, and `accidents’ resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.”(NB: Marc Wanamaker, “The First Studios,” The Silents Majority, archived at link #12.) That led the independents to flee the East Coast. California was remote enough from Edison’s reach that filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood filmmaking, Fox most prominently, did just that.
[k898] American law ordinarily calls this a “compulsory license,” but I will refer to it as a “statutory license.” A statutory license is a license whose key terms are set by law. After Congress’s amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute. This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if Grisham gives the publisher permission. Grisham, in turn, is free to charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham’s work except with permission of Grisham. But the law governing recordings gives recording artists less. And thus, in 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. The Beatles have less control over their creative work than Grisham does. And the beneficiaries of this less control are the recording industry and the public. The recording industry gets something of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity.
[k933] And if the law were perfectly consistent, the radio station would have to pay the recording artist for his work, just as it pays the composer of the music for his work. But it doesn’t. Under the law governing radio performances, the radio station does not have to pay the recording artist. The radio station need only pay the composer. The radio station thus gets a bit of something for nothing. It gets to perform the recording artist’s work for free, even if it must pay the composer something for the privilege of playing the song.
[k963] These were “free-ride[rs],” Screen Actor’s Guild president Charlton Heston said, who were “depriving actors of compensation.”(NB: Copyright Law Revision–CATV, 209 (statement of Charlton Heston, president of the Screen Actors Guild).) But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it, Our point here is that unlike the problem of whether you have any copyright protection at all, the problem here is whether copyright holders who are already compensated, who already have a monopoly, should be permitted to extend that monopoly . . . . The question here is how much compensation they should have and how far back they should carry their right to compensation.(NB: Copyright Law Revision–CATV, 216 (statement of Edwin M. Zimmerman, acting assistant attorney general).) Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing. It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they “pirated.” In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner. The price was set by law, so that the broadcasters couldn’t exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a “piracy” of the value created by broadcasters’ content.
[k996] Which is not to say that excuses and justifications couldn’t be made for it. We could, for example, remind ourselves that 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. It might therefore seem hypocritical for us to insist so strongly that other developing nations treat as wrong what we, for the first hundred years of our existence, treated as right.
Lessig needs a marketing system for the types of sharing. A, B, C, and D are too cumbersome and don’t evoke images that can be retained by othrer articles.
[k1088] A. There are some who use sharing networks as substitutes for purchasing content.
[k1091] B. There are some who use sharing networks to sample music before purchasing it.
[k1095] C. There are many who use sharing networks to get access to copyrighted content that is no longer sold or that they would not have purchased because the transaction costs off the Net are too high.
[k1101] D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away.
[k1829] But what’s good for the MPAA is not necessarily good for America. A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old. To get just a hint that there is something fundamentally wrong in Valenti’s argument, we need look no further than the United States Constitution itself.
[k1840] The Constitution thus on its face states that these two forms of property are not to be accorded the same rights. They are plainly to be treated differently. Valenti is therefore not just asking for a change in our tradition when he argues that creative-property owners should be accorded the same rights as every other property-right owner. He is effectively arguing for a change in our Constitution itself.
[k1953] In a free society, with a free market, supported by free enterprise and free trade, the government’s role is not to support one way of doing business against others. Its role is not to pick winners and protect them against loss. If the government did this generally, then we would never have any progress. As Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software patents, “established companies have an interest in excluding future competitors.”
[k2061] The effect of these extensions is simply to toll, or delay, the passing of works into the public domain. This latest extension means that the public domain will have been tolled for thirty-nine out of fifty-five years, or 70 percent of the time since 1962. Thus, in the twenty years after the Sonny Bono Act, while one million patents will pass into the public domain, zero copyrights will pass into the public domain by virtue of the expiration of a copyright term.
[k2415] Flash: No one ever died from copyright circumvention. Yet the law bans circumvention technologies absolutely, despite the potential that they might do some good, but permits guns, despite the obvious and tragic harm they do.
[k2462] The story with radio is even more dramatic. Before deregulation, the nation’s largest radio broadcasting conglomerate owned fewer than seventy-five stations. Today one company owns more than 1,200 stations. During that period of consolidation, the total number of radio owners dropped by 34 percent. Today, in most markets, the two largest broadcasters control 74 percent of that market’s revenues. Overall, just four companies control 90 percent of the nation’s radio advertising revenues.
[k2546] Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? No. You cannot. Television stations have a general policy of avoiding “controversial” ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial. This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have the right to choose what they run. Thus, the major channels of commercial media will refuse one side of a crucial debate the opportunity to present its case.
[k2585] Never in our history have fewer had a legal right to control more of the development of our culture than now. Not when copyrights were perpetual, for when copyrights were perpetual, they affected only that precise creative work. Not when only publishers had the tools to publish, for the market then was much more diverse. Not when there were only three television networks, for even then, newspapers, film studios, radio stations, and publishers were independent of the networks. Never has copyright protected such a wide range of rights, against as broad a range of actors, for a term that was remotely as long. This form of regulation–a tiny regulation of a tiny part of the creative energy of a nation at the founding–is now a massive regulation of the overall creative process. Law plus technology plus the market now interact to turn this historically benign regulation into the most significant regulation of culture that our free society has known.
[k2635] We achieved that free culture because our law respected important limits on the scope of the interests protected by “property.” The very birth of “copyright” as a statutory right recognized those limits, by granting copyright owners protection for a limited time only (the story of chapter 6). The tradition of “fair use” is animated by a similar concern that is increasingly under strain as the costs of exercising any fair use right become unavoidably high (the story of chapter 7). Adding statutory rights where markets might stifle innovation is another familiar limit on the property right that copyright is (chapter 8). And granting archives and libraries a broad freedom to collect, claims of property notwithstanding, is a crucial part of guaranteeing the soul of a culture (chapter 9). Free cultures, like free markets, are built with property. But the nature of the property that builds a free culture is very different from the extremist vision that dominates the debate today.
[k2653] The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer.
[k2781] 2003), available at link #37.) 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.
[k2785] 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?
[k2806] But fair use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad–in practically every context, but especially here.
[k2860] Applying the law as it is, the judge imposed a fine against MP3.com of 118 million. MP3.com then settled with the remaining plaintiff, Vivendi Universal, paying over 54 million. Vivendi purchased MP3.com just about a year later. That part of the story I have told before. Now consider its conclusion. After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice lawsuit against the lawyers who had advised it that they had a good faith claim that the service they wanted to offer would be considered legal under copyright law. This lawsuit alleged that it should have been obvious that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who had dared to suggest that the law was less restrictive than the labels demanded. The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the story was no longer covered in the press) was to send an unequivocal message to lawyers advising clients in this space: It is not just your clients who might suffer if the content industry directs its guns against them. It is also you. So those of you who believe the law should be less restrictive should realize that such a view of the law will cost you and your firm dearly.
[k2887] It is hard enough to start a company. It is impossibly hard if that company is constantly threatened by litigation.
[k3023] And the RIAA experts said, “Well, we don’t really model this as an industry with thousands of webcasters, we think it should be an industry with, you know, five or seven big players who can pay a high rate and it’s a stable, predictable market.”
[k3048] Our law is an awful system for defending rights. It is an embarrassment to our tradition. And the consequence of our law as it is, is that those with the power can use the law to quash any rights they oppose.
[k3059] We pride ourselves on our “free society,” but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law.
[k3393] Thus, for the vast majority of old films, Agee argued, the film will not be restored and distributed until the copyright expires. But by the time the copyright for these films expires, the film will have expired. These 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.
[k3438] My message is absolutely not antimarket. But where we see the market is not doing the job, then we should allow nonmarket forces the freedom to fill the gaps. As one researcher calculated for American culture, 94 percent of the films, books, and music produced between and 1946 is not commercially available. However much you love the commercial market, if access is a value, then 6 percent is a failure to provide that value.
[k3783] Without a registration system for land, landowners would perpetually have to guard their property. With registration, they can simply point the police to a deed. Without a registration system for cars, auto theft would be much easier. With a registration system, the thief has a high burden to sell a stolen car. A slight It is similarly special physics that makes formalities important in copyright law. Unlike a carpenter’s table, there’s nothing in nature that makes it relatively obvious who might own a particular bit of creative property. A recording of Lyle Lovett’s latest album can exist in a billion places without anything necessarily linking it back to a particular owner. And like a car, there’s no way to buy and sell creative property with confidence unless there is some simple way to authenticate who is the author and what rights he has. Simple transactions are destroyed in a world without formalities. Complex, expensive, lawyer transactions take their place.
[k4022] One wants to ask Ms. Boland, are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does the public domain weaken intellectual property? Would it have been better if the protocols of the Internet had been patented?
[k4137] (again, we can hope), spying doesn’t pay. The highly inefficient architecture of real space means we all enjoy a fairly robust amount of privacy. That privacy is guaranteed to us by friction.
[k4171] Therefore, in 1984, Stallman began a project to build a free operating system, so that at least a strain of free software would survive. That was the birth of the GNU project, into which Linus Torvalds’s “Linux” kernel was added to produce the GNU/Linux operating system.
[k4177] Stallman was thus doing for software what privacy advocates now do for privacy. He was seeking a way to rebuild a kind of freedom that was taken for granted before. Through the affirmative use of licenses that bind copyrighted code, Stallman was affirmatively reclaiming a space where free software would survive. He was actively protecting what before had been passively guaranteed.
[k4197] As journals become electronic, however, the publishers are demanding that libraries not give the general public access to the journals. This means that the freedoms provided by print journals in public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before.
[k4306] That competition drives the cost of registering down, and more importantly, it drives the ease with which registration occurs up. We should adopt a similar model for the registration and renewal of copyrights. The Copyright Office may well serve as the central registry, but it should not be in the registrar business. Instead, it should establish a database, and a set of standards for registrars. It should approve registrars that meet its standards. Those registrars would then compete with one another to deliver the cheapest and simplest systems for registering and renewing copyrights.
[k4359] Keep it alive: Copyright should have to be renewed. Especially if the maximum term is long, the copyright owner should be required to signal periodically that he wants the protection continued. This need not be an onerous burden, but there is no reason this monopoly protection has to be granted for free. On average, it takes ninety minutes for a veteran to apply for a pension.(NB: Department of Veterans Affairs, If we make veterans suffer that burden, I don’t see why we couldn’t require authors to spend ten minutes every fifty years to file a single form.
[k4443] Here, then, is the critical point: When it is extremely easy to connect to services that give access to content, it will be easier to connect to services that give you access to content than it will be to download and store content on the many devices you will have for playing content. It will be easier, in other words, to subscribe than it will be to be a database manager, as everyone in the download-sharing world of Napster-like technologies essentially is.
How does this compare with Ted Nelson’s microcontent?
[k4498] Fisher’s proposal is very similar to Richard Stallman’s proposal for DAT. Unlike Fisher’s, Stallman’s proposal would not pay artists directly proportionally, though more popular artists would get more than the less popular. As is typical with Stallman, his proposal predates the current debate by about a decade. See link #85.) Fisher suggests a very clever way around the current impasse of the Internet. Under his plan, all content capable of digital transmission would (1) Once the content is marked, then entrepreneurs would develop (2) systems to monitor how many items of each content were distributed. On the basis of those numbers, then (3) artists would be compensated. The compensation would be paid for by (4) an appropriate tax. Fisher’s proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, Promises to Keep. The modification that I would make is relatively simple: Fisher imagines his proposal replacing the existing copyright system. I imagine it complementing the existing system.
[k4521] As the sellers of cable television have known for thirty years, and the sellers of bottled water for much more than that, there is nothing impossible at all about “competing with free.” Indeed,
[k4530] We can minimize that harm while maximizing the benefit to innovation by 1. guaranteeing the right to engage in type D sharing; 2. permitting noncommercial type C sharing without liability, and commercial type C sharing at a low and fixed rate set by statute; 3. while in this transition, taxing and compensating for type A sharing, to the extent actual harm is demonstrated.
[k4565] But the legal system doesn’t work. Or more accurately, it doesn’t work for anyone except those with the most resources. Not because the system is corrupt. I don’t think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done.
[k4580] The law should regulate in certain areas of culture–but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: “Will it do good?” When challenged about the expanding reach of the law, the lawyer answers, “Why not?” We should ask, “Why?” Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away.
I have always wondered why more authors don’t do this. It has real value to the readers and the author’s market.
[k4586] I have tried to remedy the instability by redirecting readers to the original source through the Web site associated with this book. For each link below, you can go to free-culture.cc
[k4584] Throughout this text, there are references to links on the World Wide Web. As anyone who has tried to use the Web knows, these links can be highly unstable. I have tried to remedy the instability by redirecting readers to the original source through the Web site associated with this book. For each link below, you can go to free-culture.cc/notes and locate the original source by clicking on the number after the # sign. If the original link remains alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material.