Lawrence Lessig

Free Culture

How big media use technology and the law to lock down culture and control creativity

CONTENTS

PREFACE xiii

INTRODUCTION 1

“PIRACY” 15

CHAPTER ONE: Creators 21

CHAPTER TWO: “Mere Copyists” 31

CHAPTER THREE: Catalogs 48

CHAPTER FOUR: “Pirates” 53

Film 53

Recorded Music 55

Radio 58

Cable TV 59

CHAPTER FIVE: “Piracy” 62

Piracy I 63

Piracy II 66

“PROPERTY” 81

CHAPTER SIX: Founders 85

CHAPTER SEVEN: Recorders 95

CHAPTER EIGHT: Transformers 100

CHAPTER NINE: Collectors 108

CHAPTER TEN: “Property” 116

Why Hollywood Is Right 124

Beginnings 130

Law: Duration 133

Law: Scope 136

Law and Architecture: Reach 139

Architecture and Law: Force 147

Market: Concentration 161

Together 168

PUZZLES 175

CHAPTER ELEVEN: Chimera 177

CHAPTER TWELVE: Harms 183

Constraining Creators 184

Constraining Innovators 188

Corrupting Citizens 199

BALANCES 209

CHAPTER THIRTEEN: Eldred 213

CHAPTER FOURTEEN: Eldred II 248

CONCLUSION 257

AFTERWORD 273

Us, Now 276

Rebuilding Freedoms Previously Presumed:

Examples 277

Rebuilding Free Culture: One Idea 282


PREFACE

At the end of his review of my first book, Code: And Other Laws of Cyberspace, David Pogue, a brilliant writer and author of countless technical and computer-related texts, wrote this:

Unlike actual law, Internet software has no capacity to punish. It doesn’t affect people who aren’t online (and only a tiny minority of the world population is). And if you don’t like the Internet’s

system, you can always flip off the modem.

Pogue was skeptical of the core argument of the book—that software, or “code,” functioned as a kind of law—and his review suggested the happy thought that if life in cyberspace got bad, we could always “drizzle, drazzle, druzzle, drome”-like simply flip a switch and be back home. Turn off the modem, unplug the computer, and any troubles that exist in that space wouldn’t “affect” us anymore.

Pogue might have been right in 1999—I’m skeptical, but maybe. But even if he was right then, the point is not right now: Free Culture is about the troubles the Internet causes even after the modem is turned off. It is an argument about how the battles that now rage regarding life on-line have fundamentally affected “people who aren’t online.” There is no switch that will insulate us from the Internet’s effect.

But unlike Code, the argument here is not much about the Internet itself. It is instead 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.

That tradition is the way our culture gets made. As I explain in the pages that follow, we come from a tradition of “free culture”—not “free” as in “free beer” (to borrow a phrase from the founder of the freesoftware movement), but “free” as in “free speech,” “free markets,” “free trade,” “free enterprise,” “free will,” and “free elections.” A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a “permission culture”—a culture in which creators get to create only with the permission of the powerful, or of creators from the past.

If we understood this change, I believe we would resist it. Not “we” on the Left or “you” on the Right, but we who have no stake in the particular industries of culture that defined the twentieth century. Whether you are on the Left or the Right, if you are in this sense disinterested, then the story I tell here will trouble you. For the changes I describe affect values that both sides of our political culture deem fundamental. We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC considered changes in media ownership rules that would relax limits on media concentration, an extraordinary coalition generated more than 700,000 letters to the FCC opposing the change.

As William Safire described marching “uncomfortably alongside CodePink Women for Peace and the National Rifle Association, between liberal Olympia Snowe and conservative Ted Stevens,” he formulated perhaps most simply just what was at stake: the concentration of power. And as he asked,

Does that sound unconservative? Not to me. The concentration of power—political, corporate, media, cultural—should be anathema to conservatives. The diffusion of power through local control, thereby encouraging individual participation, is the essence of federalism and the greatest expression of democracy.

This idea is an element of the argument of Free Culture, though my focus is not just on the concentration of power produced by concentrations in ownership, but more importantly, if because less visibly, on the concentration of power produced by a radical change in the effective scope of the law. The law is changing; that change is altering the way our culture gets made; that change should worry you—whether or not you care about the Internet, and whether you’re on Safire’s left or on his right.



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