Free culture: how big media uses technology and the law to lock down culture and control creativity

Abstract

In Free Culture Lawrence Lessig argues that current technology -- specifically the rise of the Internet and the attendant peer-to-peer (p2p) file sharing possibilities -- has made for new conditions that have been both inadequately and incorrectly addressed by law-makers. As he shows, contemporary copyright protection has come to be much more far-reaching than ever before, and he expresses great concern about the stifling and chilling effect this has on cultural production and creativity (in their broadest possible definitions). Free Culture offers a good overview of the changing nature of copyright, and the legislative responses to technological advances. New technologies have often threatened (or appeared to threaten) content creators and providers, but previously regulation (and judicial interpretation thereof) has generally managed to balance the rights of copyright holders with the socially desirable making available of such property (readily, if possibly cheaply, and eventually freely). As Lessig reminds the readers, the American Founding Fathers saw intellectual property differently than other types of property, specifically insisting in the Constitution that copyrights (like patents) can only be secured "for limited Times" (but, as he also points out, after he lost Eldred v. Ashcroft in front of the Supreme Court, it appears that Congress has now been given carte blanche to extend copyright-protection for an essentially unlimited term). Earlier technologies that allowed the easy reproduction of copyright-protected material were also challenged, and it's fun to read such hysterical rantings as that of the head of the Motion Picture Association of America, Jack Valenti, when the VCR was introduced: One does not have to be trained in sophisticated marketing and creative judgment to understand the devastation on the after-theater marketplace caused by the hundreds of millions of tapings that will adversely impact on the future of the creative community in this country. It is simply a question of basic economics and plain common sense. Previously the powers-that-be have had only limited success in exerting total control over their copyrighted material, but, as Lessig points out, current technology allows far more complete control. And the law (generally new law, written by lawmakers whose pockets are lined by the few who benefit tremendously from strict restrictions) has come down hard in favour of such complete control. Lessig argues that it is not a question of no protection (i.e. anybody can take anything over the Internet and do what they want with it) versus complete protection (the copyright holder is allowed to decide any and all use of the protected material), but notes that the debate is often framed like that. In fact, the complete control copyright-holders (or at least the big corporate players) now claim (and are close to getting) is a radical shift from how intellectual property has been treated previously. Lessig believes there is a middle ground that could be found. The most significant aspect of the book is in pointing out the consequences of the current copyright-protection regime. New regulations often impose absurdly high penalties: Lessig notes that stealing a CD from a store carries (in California) a maximum fine of $ 1,000.00 -- but downloading a ten-track CD makes you liable for $ 1,500,000.00 of damages. The costs aren't only high for patently illegal uses -- and that's what Lessig sees as the biggest problem: even legitimate or fair use is stifled. The "permission culture" that has arisen imposes a huge burden on society -- especially since copyright, in its current form, is so hard to track down. The bulk of all material still protected by copyright is out of print and out of sight -- and because of the difficulty in determining who owns what (copyright holders do not need to register in order to protect their intellectual property), there's little incentive to utilize it in any form, or make it available. Coupled with the consolidation of big media (content outlets, apart from on the Internet (for now), are largely concentrated in the hands of a few major corporations) creativity is becoming ever-more restricted -- or, more precisely, it is becoming ever-more difficult to take advantage of the new technologies to engage in new creative activity. The new technologies afford incredible opportunities, but many of these can't be explored or considered because of current legal restrictions. Lessig makes a good case for this being a bad thing for society as a whole (and completely at odds with previous American attitudes towards the use of new technologies). Lessig offers several sensible solutions in working towards improving the situation -- understanding that new technologies bring constant change with them, and that tomorrow's problems will likely be very different from today's. Particularly sensible is the call for shorter copyright terms, a registration requirement, and the pos