reviewed
by J.D. Lasica |
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April
26 , 2004
| When future generations look back at this unsettled era
in which we're transitioning from an analog to a digital society,
the search bots may be impressed most by the works of Lawrence
Lessig.
In his first book, Code
and Other Laws of Cyberspace, dark forces were gathering, conspiring
to use code as a form of privatized law to hem in the Internet and
the potential of the digital revolution. Readers learned that the
Net, far from impervious, could be subdued by rewiring its architecture.
The premise seems obvious now, but only because Lessig's 1999 ground-breaker
connected the dots for us and set the scene for the struggles to
follow.
His 2001 follow-up, The Future
of Ideas, examined the kinds of innovation that could flourish
online but for the intrusion of copyright law. Lessig's second outing
deepened our understanding of the forces in conflict: entertainment
companies, rigid business models, and obsequious policy-makers set
against tech innovators, risk-taking businessmen, and Netizens who
still took their online freedoms for granted. In a style that was
uncommonly accessible for this academic-turned-storyteller, Lessig
tackled the public commons, the end-to-end principle, spectrum regulation,
and other classic and modern precepts in an effort to get us to
look at intellectual property in a new light.
Now comes Free Culture: How Big Media Uses Technology and the Law
to Lock Down Culture and Control Creativity. The book could be considered
the finale in Lessig's trilogy, a sort of Lord of the Rings for
the intellectual property crowd.
The good professor lives up to the arguments he espouses by making
the book available for free
download on the Internet. Since its release in late March, Free
Culture has become something of a remix
phenomenon, with fans uploading audio
versions of each chapter and others recirculating the work in
new formats, such as wikis, iSilo and Mobipocket. No worries: It
was released under a Creative
Commons license.
Once again Lessig calls to our attention the increasing disconnect
between law and digital culture. We see studio moguls, recording
executives and Beltway insiders all seeking to impose what Lessig
calls an "extremist" agenda by divorcing copyright law from its
moorings in the Constitution as a balanced copyright bargain struck
between creators and the public. Instead, we're now seeing a new
brand of intellectual property, where digital "property" rights
are valued above all else and "piracy" is portrayed as the common
enemy.
It is this framing of the issue, as one of property and law vs.
piracy and theft, that itself is dishonest, as Lessig shows. Instead,
the real battle is about control. As he writes: "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." This has become the blood feud that
is today tearing at the fabric of digital culture: Should the public's
right to participate in culture be sacrificed on the altar of protecting
big media's business models?
Lessig, a law professor at Stanford, serves as our historical tour
guide, aptly demonstrating that each of the major entertainment
industries -- Hollywood, cable television, radio, the music recording
industry -- was itself guilty of piracy in its early years. Culture,
it seems, has always wanted to borrow from what came before.
He also summons up moral outrage in pointing out the baseness of
a legal system in which a teen faces a maximum fine of $1,000 if
he shoplifts a CD from a record store -- but faces statutory damages
of $150,000 for downloading a single song without permission. He
shows us the added financial burden the government placed upon Internet
radio, which must pay recording artists for every Webcast of a song,
even though terrestrial radio is exempt from such payments. The
double standard has gone a long way toward smothering Internet radio
in the cradle.
At times, Lessig steps out of the legal cocoon to wonder about
larger social policies. He writes:
Why is it that the part of our culture that is recorded
in newspapers remains perpetually accessible, while the part that
is recorded on videotape is not? How is it that we've created a
world where researchers trying to understand the effect of media
on nineteenth-century America will have an easier time than researchers
trying to understand the effect of media on twentieth-century America?
Near the end, Lessig takes us on an extended tour of Eldred v.
Ashcroft, the landmark case involving the public commons that he
argued before the Supreme Court and lost, 7-2, 15 months ago. He
spends a bit too much time refining his arguments in an imaginary
rehearing of the case rather than recounting personal details of
what was taking place behind the scenes. In the end, the High Court
caved to special interests, granting Congress the right to extend
already lengthy copyright terms by another 20 years, without bothering
to explain how such an act will offer incentives to Robert Frost,
Ernest Hemingway, George Gershwin, Irving Berlin or other long-dead
creators. In so doing, the court helped ignite a digital prairie
fire that will doubtless grow hotter in intensity as digital technology
becomes a pervasive part of our lives.
The giant of cyberlaw has a few prescriptions for this sad state
of affairs. One is Creative Commons, the organization housed at
Stanford that gives creators greater freedom over how to manage
and share their digital handiworks. But a more fundamental solution
lies in Lessig's call for Congress to revisit the very basis of
copyright. He recommends shortening copyright terms and, importantly,
rewiring its fundamentals so that everything on the Internet does
not automatically fall into the regulatory black hole governed by
copyright law. Lessig suggests (as others have done) remixing the
law so that copyright comes into play not when someone makes a copy
of something for personal use but only when someone is engaged in
profiting off others' works -- that is, true piracy.
His final suggestion is one of his best: Fire lots of lawyers.
bio:
J.D.
Lasica is a veteran journalist who writes frequently about
the impact of emerging technologies on our culture. He is currently
working on a book about the clash between entertainment companies
and technologists.
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