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

Author: Lawrence Lessig
Publisher: New York: Penguin Press, 2004
Review Published: March 2005

 REVIEW 1: Arthur L. Morin

    "We will have an information society. That much is certain. Our only choice now is whether that information society will be free or feudal. The trend is toward the feudal." (267)
This trend is the genuinely menacing windmill against which Lawrence Lessig, clear-eyed about the power and forces that blow through its sails, knowingly jousts. Free Culture is about Lessig's ongoing vigil, a vigil he hopes others will join. He has not lost hope for the future of ideas.[1] The book and Lessig's related efforts appear to be, in part, a kind of penance for his failure to successfully litigate the Eldred v Ashcroft case (more on this later). Lessig, "a professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, founder of the Stanford Center for Internet and Society, and chairman of Creative Commons (from About the Author), argues that changes in copyright law are manifestations of an extremism that threatens innovation and creativity both on and off the Internet because the changes unduly shrink the intellectual/creative commons. He presents a set of ideas/plans for how to achieve an appropriate balance in the Internet age between the need to protect intellectual property rights, on the one hand, and the need for access to the fruits of creative activity, on the other. He is passionate about his topic.

One facet of Lessig's critique is that powerful interests (the windmills) have used their influence to shape legislation in such a way that the 'protection - access' balance is swinging way too far in the direction of 'protection.' Lessig's Constitutional argument in the Eldred case was that the "limited times" phrase of the 'progress' clause ought to mean "limited," and that, if no break is placed on the Congressional impetus to increase the length of time for which material retains copyright protection (particularly where powerful economic forces in the Internet age can exercise influence on how the market and technology works), Congress would, in effect, be in violation of the Constitution:
    The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries . . . (U.S. Constitution, Article I, Section 8)
In other words, Lessig argues that if no break is placed on Congress's ability to increase the length of time for which material receives copyright protection, given what can be done with technology in an economy where powerful economic interests can influence the market, it would defeat the rationale for the protection -- "to promote the progress of science and useful arts" -- because it would chill the efforts to build on the work of others, thus slowing innovation and creativity.

In the Eldred case, Lessig had hoped that the Supreme Court would follow an analogous principle it had established with regard to the Commerce Clause: that Congress's use of the commerce clause (also in Article I, Section 8) had limits. Lessig felt that his objection to the abuse of copyright law was particularly strong because the Constitution expressly directs Congress to use "limited times" in setting copyright or patent protections.[2] According to Lessig, the Supreme Court simply ignored the Commerce Clause analogy. Apparently the Court did not see sufficient harm in what Congress was doing to warrant a rebuttal from the Court. Lessig takes the blame for taking the wrong tack in the suit, but does raise the possibility that the court would not have found in favor of Eldred even if Lessig had taken a different approach.

My reading of the syllabus of Eldred v Ashcroft yields a different understanding of the case. The court pointed out that the law in question, the Copyright Term Extension Act (CTEA) of 1998, did not extend copyright protection into perpetuity but for a limited time. The Court also rejected the argument that the 1998 extension was qualitatively different than earlier extensions. In short, the court explicitly found that Congress had exercised its powers in a Constitutional manner. After reading the syllabus, I found the Court's decision more convincing than Lessig's position. (I will forego a discussion of other elements of the case. For example, the plaintiffs had also included a First Amendment argument that the Court found unconvincing.) However, even if one comes away from Lessig's book with a mis-reading of Eldred, Lessig's point that the trend shifting the balance in favor of 'protection' is still valid.

One tactic advocated by Lessig to counter the influence of powerful interests is to storm the Bastille -- that is, through grass-roots activism that will result in the voice of the people speaking so loudly that the political system will have to respond. He believes that the U.S. political system still cares about what the people think: it hasn't reached the "let them eat cake" stage yet. Another tactic Lessig advocates is for individuals and groups to use the architecture of the Internet to "free" culture. An example of this kind of effort is Creative Commons; another example is the Public Library of Science. The first tactic is an effort to shape law. The second tactic is an effort to shape norms by using architecture toward a particular end: to free culture by creating a larger intellectual commons and supplementing what is available through the market (though the degree to which the market would be supplemented, as opposed to replaced, may be an open question). These four -- Law, Market, Architecture, and Norms (121) -- are (as Lessig points out) the modalities first encountered in Lessig's book Code and Other Laws of Cyberspace.

Thus, Lessig's strategy is to adopt a multi-modal approach in attempting to free culture, and his strategy involves the use of specific tactics for at least three of the four modalities (law, architecture, and norms). His overall approach -- adopting a multi-modal strategy and using specific tactics for each modality -- has the advantage of working on several fronts simultaneously. Coordinating efforts undertaken in the pursuit of various tactics may not be necessary, as long as the overarching goal (free culture) is at the forefront of the minds of those involved in activities that fall within the realm of different tactics. Indeed, a decentralized approach seems completely congruous with a free culture. The particular statutory and policy changes suggested by Lessig are not important because they are the only way to proceed (there certainly may be other ways), but because they demonstrate that a nuanced and complex approach is possible. Therefore, a critique of Lessig's specific policy proposals cannot serve as an attack of Lessig's more fundamental concern that the copyright system has become skewed in the favor of special interests and to the detriment of both what the Internet and the larger culture can and should be.

Lessig bases his fundamental concern on a particular understanding of the 'progress' clause of the Constitution, on the evolution of copyright law (particularly in the 20th century), on the assumption that the market itself is subject to the influence of a few powerful interests, and on the assumption that the Internet is still evolving. Lessig's argument that the purpose of the 'progress' clause is best achieved with a balance between protection of copyright, on the one hand, and access, on the other, seems eminently reasonable to me. Lessig believes that the issue is neither a Republican nor a Democrat issue, but rather an issue of common sense. One question this leaves is: has the law evolved so that there is now an imbalance grossly in favor of protection? Lessig points out that in the beginning what was protected was limited, and it was protected for a limited time. Today, as Lessig makes clear, significantly more falls under the 'protected' category and for a much longer period of time. Thus, while some may argue that the U.S. has not yet reached the stage that any kind of statutory or policy change is in order, it is very clear that the trajectory of the law is in the direction of unduly favoring protection.

We are therefore left with two other questions: 1) is the Internet still evolving; and 2) is the market unduly influenced by a few powerful actors? With regard to the first question: though others may disagree (perhaps Koepsell, and his The Ontology of Cyberspace, is among the detractors), it seems to me that the Internet has no natural ontology. It is technically possible for the Internet to be either a very closed system or a very open system, or somewhere between. There could be a series of unconnected Internets or one globally connected Internet. And so forth. My personal preference is for one global system biased in favor of openness. I believe that such a system could foster the kind of innovation and creativity that Lessig also favors. A bias in favor of an open system also seems more congruent with a free and democratic society. The important point is that technology can be shaped by human purposes. Our primary challenge is to determine which purposes.

What, then, about market concentration? According to Mark Cooper [3],
    The dissemination of news and information in America, particularly local news and information, is still dominated by local television stations and newspapers. Local media markets are already highly concentrated. Even at the national level, the ownership and control of television programming, especially news dissemination, is concentrated. (5)
Cooper states that there is "a vast body of evidence that supports the deep concerns that over-reliance on unfettered commercial mass media will fail to meet the needs of citizens for democratic dialogue," and goes on to state that "trends in the media" are characterized by "hypercommercialism, concentration, consolidation and conglomeration in the dominant media" (8).[4] While the demand side of media appears to be healthy (in terms of diversity), the story is different for the supply side: "by routine antitrust standards virtually all of the national and local media product markets are concentrated and most are highly concentrated" (10). According to Cooper, "a small number of giant corporations interconnected by ownership, joint ventures, and preferential deals now straddles broadcast, cable, and the internet" (25). One can certainly argue that this does not bode well for creativity and innovation, even creativity and innovation outside of the media.

Lessig's argument is marred by some redundancy and fragmentation of analysis, and some readers may feel that not all of his analogies are as applicable as he may think. It appears to me that Lessig struggles between feeling that the political/legal system is corrupt and that it is not (see, for example, pages 216 and 305). On the other hand, Lessig's basic point regarding property is eminently defensible: that what is property and what rights are entailed in ownership are not forever fixed, but evolve; Lessig points out that technological change is one 'driver' of this evolution.[5] Lessig's concern about the emergence of a feudalistic information society is well-placed and the strategy of a multi-modal approach to resist and/or reverse this trend is a good one.

Previously, I have stated that Lessig's policy recommendations are nuanced and complex and that it is not so much the specifics of the recommendations that are important but the fact that they are nuanced and complex, because they illustrate the kind of nuance possible in public policy. Even so, his specific recommendations are worth consideration. For example, Lessig states that "the important formalities are three: marking copyrighted work, registering copyrights, and renewing the claim to copyright" (288). Lessig suggests that the U.S. follow a process like the one that distinguishes between "central registry" and "actual registrations" of domain name owners (289). Separate marking requirements for different media could emerge. The Copyright Office's role would not be to develop marking standards but to use the hearing process to reach a marking standard it would approve. An unmarked work could be used by others without copyright violation, until the owner had the work marked and registered. Copyright control of derivative works, if imposed by Congress, "should be for a much shorter term" than copyright control over original work (294). "Likewise," Lessig adds, "should the scope of derivative rights be narrowed" (295).

In Lessig's opinion, policy regulating file-sharing should take into account the different uses of file-sharing and the effect one type of use has on another type of use: filesharing (1) as a substitute "for purchasing CDs. ...[;]" (2) used to "sample, on the way to purchasing CDs. ...[;]" (3) used "to get access to content that is no longer sold but is still under copyright or that would have been too cumbersome to buy off the Net. ...[;]" or (4) used "to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses" (296, 297). Lessig doesn't favor laws that aim to protect copyrighted CDs if those laws unduly affect type four uses. There is more to his policy proposal than covered by this and the previous paragraph, but the two paragraphs do provide some sense of Lessig's nuanced approach.

The appropriate balance between 'protection' and 'access' and how to achieve that balance are important issues. After reading Lessig's book, one may be more inclined to say "Get your lances and start tilting!"

[1] Future of Ideasis the title of an earlier book by Lessig. Free Culture can be seen as the third book in a series that started with Lessig's Code and Other Laws of Cyberspace and later followed by The Future of Ideas: The Fate of the Commons in a Connected World.

[2] Lessig argues thus:
    [The 'progress' clause] is unique within the power-granting clause of Article I, Section 8 of our Constitution. Every other clause granting power to Congress simply says Congress has the power to do something . . . But here [in the 'progress' clause], the 'something' is quite specific -- to 'promote . . . Progress' -- through means that are also specific -- by 'securing' 'exclusive Rights' (i.e., copyrights) 'for limited Times.' (215)
One could argue that the power to promote progress is no more specific than the power to declare war, which would mean that the uniqueness of the 'progress' clause is in the "exclusive rights" phrase and/or the "limited times" phrase. However, in Article I, Section 8, the Constitution also places express limits on the time period for which funds are appropriated (two years), and it also places express geographical limits ("ten miles square") on its exclusive legislative powers over the District of Columbia.

[3] Mark Cooper, "Media Ownership and Democracy in the Digital Information Age: Promoting Diversity with First Amendment Principles and Market Structure Analysis," Center for Internet and Society, Stanford Law School. (Accessed January 12, 2005). See also Robert W. McChesney, "The global media giants: The nine firms that dominate the world," November/December 1997. (Accessed on January 12, 2005).

[4] Cooper’s book "shows that previous decisions to relax [ownership] rules led directly to concentration, consolidation, and conglomeration, which had harmful effects on the quality of journalism and democratic discourse" (6). One could certainly use this as an analog for what will happen to innovation and creativity as a result of market concentration, especially as the 'protection v access' dilemma gets tilted more toward the 'protection' side.

[5] The questions of what constitutes property, how one acquires it, and what rights (if any) are inherent in property are important and germane, but they are beyond the scope of this review.

Arthur L. Morin:
Arthur L. Morin is an Associate Professor in the Department of Political Science and Justice Studies and Director of the Master of Liberal Studies Program at Fort Hays State University.  <amorin@fhsu.edu>

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