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This article is about the book; for other meanings of the phrase, see free culture.
Free Culture
AuthorLawrence Lessig
LanguageEnglish
GenreNon-fiction
Publication date
2004
Publication placeUnited States
Media typePrint (Hardcover and Paperback)
Preceded byThe Future of Ideas 
Followed byCode: Version 2.0 

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (published in paperback as Free Culture: The Nature and Future of Creativity) is a 2004 book by law professor Lawrence Lessig that was released on the Internet under the Creative Commons Attribution/Non-commercial license (by-nc 1.0) on March 25, 2004.

"There has never been a time in history when more of our 'culture' was as 'owned' as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now." (pg. 28)

Summary

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The law professor Lawrence Lessig

This book is an outgrowth of the US Supreme Court decision in Eldred v. Ashcroft, which Lessig lost. Article I, Section 8, Clause 8 of the US Constitution says that, "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." Several times in the past century, congress has extended the copyright law in several ways. One way was to extend the term "on the installment plan".[1] Another was to broaden the scope to include not only copying but creating "derivative works". This latter broadening is so ambiguous that it provides a foundation for massive abuse of power by companies holding large copyright portfolios. For example, the Recording Industry Association of America sued a freshman at Rensselaer Polytechnic Institute (RPI) for $10,000,000 for improving a search engine used only inside RPI.[2] Lessig cites another example where Fox demanded $10,000 for the rights to use a 4.5 second video clip with The Simpsons playing on a television in a corner of that scene.[3] Anyone producing a collage of video clips can potentially be similarly sued on the grounds the collage is a "derivative work" of something copyrighted or that the collage contains a shot that is copyrighted. Lessig argues that this substantially limits the growth of creative arts and culture, in violation of the US Constitution; the Supreme Court ruled that Congress has the constitutional authority to properly balance competing interests on cases like this.

In the preface of Free Culture, Lessig compares this book with a previous book of his, Code and Other Laws of Cyberspace, which propounded that software has the effect of law. Free Culture's message is different, Lessig writes, because it is "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." (pg. xiv)

Professor Lessig analyzes the tension that exists between the concepts of piracy and property in the intellectual property realm in the context of what he calls the present "depressingly compromised process of making law" that has been captured in most nations by multinational corporations that are interested in the accumulation of capital and not the free exchange of ideas.

The book also chronicles his prosecution of the Eldred v. Ashcroft case and his attempt to develop the Eldred Act also known as the Public Domain Enhancement Act or the Copyright Deregulation Act.

Lessig concludes his book by suggesting that as society evolves into an information society there is a choice to be made to decide if that society is to be free or feudal in nature. In his afterword he suggests that free software pioneer Richard Stallman and the Free Software Foundation model of making content available is not against the capitalist approach that has allowed such corporate models as Westlaw and LexisNexis to have subscribers to pay for materials that are essentially in the public domain but with underlying licenses like those created by his organization Creative Commons.

He also argues for the creation of shorter renewable periods of copyright and a limitation on derivative rights, such as limiting a publisher's ability to stop the publication of copies of an author's book on the internet for non-commercial purposes or create a compulsory licensing scheme to ensure that creators obtain direct royalties for their works based upon their usage statistics and some kind of taxation scheme such as suggested by professor William Fisher of Harvard Law School [1] that is similar to a longstanding proposal of Richard Stallman.

Themes

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Lessig defines “Free Culture” not as “free” as in “free beer”, but “free” as in “free speech”.[4] A free culture supports and protects its creators and innovators directly and indirectly. It directly supports creators and innovators by granting intellectual property rights. It indirectly supports them by ensuring that follow-on creators and innovators remain as free as possible from the creators of the past by limiting how extensive intellectual property rights are. A “permissions culture” is the opposite of a free culture; in a permissions culture, creators and innovators are only able to create and innovate with the permission of creators of the past – whether they be powerful creators or not.[5]

Lessig presents two examples that provide some insight into the nature of these dueling cultures.

In the first example, innovation trumps government regulation: the Wright brothers (and all subsequent aircraft manufacturers) were liberated from abiding by an outdated law mandating that individual property owners were owners of the air directly above their property, enabling any property owner to forbid aircraft from flying over their property (see United States v. Causby). Aircraft were deemed beneficial for the greater public good, and a ‘private interest’ (a claim to air property rights) would not outweigh such a beneficial technological advancement. This is an example of a free culture; the Causby's did not have the power to stifle innovation, and air travel has since became a part of our culture.[6]
The second example is a tragic version of a permissions culture: an innovator, Edwin Howard Armstrong, invented a wideband frequency modulation (FM) radio – a (non-intentional) rival radio spectrum FM to RCA’s AM radio spectrum - and was met with fierce opposition and legal bullying from David Sarnoff, RCA’s president. Because Sarnoff was a “superior tactician,” RCA successfully petitioned the government to delay the deployment of FM radio, and ultimately succeeded in moving Armstrong’s FM spectrum onto its own separate spectrum band to “kill” it. This is an example of a powerful past innovator (RCA) using the government to force new innovators to request “permission” to build upon past inventions. In this case, “permission” was not granted, and the new innovation was not allowed to flourish (though we know now that FM radio did Flourish, Armstrong committed suicide before his invention was vindicated). Sarnoff's powerful position enabled him to successfully stifle innovation, preventing (albiet temporarily) the creation of culture.[7]

The disparate features of a free culture and a permissions culture effect how culture is made. In a free culture, innovators are able to create - and build upon past creations - without the worry of infringing upon intellectual property rights. In a permissions culture, innovators must first request "permission" from past creators in order to build upon or modify past creations.[8] Often times, the innovator must pay the past creator in order to obtain the permission needed to procede. If the past creator refuses to grant permission to the innovator, the past creator may appeal to the government to enforce their intellectual property rights. Typically, intellectual property rights protect culture that is produced and sold, or made to be sold. This type of culture is commercial culture,[9] and the focus of the law is typically on commercial creativity rather than non-commercial activity. Initially, the law, "protected the incentives of creators by granting them exclusive rights to their creative work, so that they could sell those exclusive rights in a commercial marketplace."[10] This protection has become far more extensive, as is evinced in the Armstong/RCA example.

Lessig argues that we are fast becoming a permissions culture, though he sees the internet as a modern-day Armstrong: it challenges the traditional innovator and seeks to break free of any permissions or strict regulations.[11] The internet can provide a vastly more vibrant and competitive innovation culture, and this is troublesome for any large corporations that have invested in fortifying their intellectual property rights: "Corporations threatened by the potential of the internet to change the way both commercial and noncommercial culture are made and shared have united to induce lawmakers to use the law to protect them."[12] The internet has facilitated the mass production of culture, both commercial and noncommercial. Corporations that had traditionally controlled this production have reacted by pressuring legislators to change the laws to protect their interests. The protection that these corporations seek is not protection for the creators, but rather protection against certain forms of business that directly threaten them.[13] Lessig’s worry is that intellectual property rights will not be protecting the right sort of property, but will instead come to protect private interests in a controlling way. He writes that the First Amendment protects creators against state control and copyright law, when properly balanced, protects creators against private control. Expansive intellectual property rights stands to dramatically increase all regulations on creativity in America, stifling innovation by requiring innovators to request permission prior to their creative work.

Free Culture covers the themes of Piracy and Property. Lessig writes at the end of the Preface, “…the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it.”[14]


Piracy

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Property

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Lessig explains that copyright is a kind of property, but that it is an odd kind of property for which the term can sometimes be misleading--the difference between taking a table and taking a good idea, for example, is hard to see under the term 'property'. .[15] As late as 1774, publishers believed a copyright was forever. A copyright at that time was more limited than it is today, only prohibiting others from reprinting a book; it did not cover, as today, other rights over performance, derivative works, etc.[16] Modern technology allows people to copy or cut and paste video clips in creative new ways to produce art, entertainment, and new modes of expression and communication that didn't exist before. The resulting potential for media literacy could help ordinary people not only communicate their concerns better but also make it easier for them to understand when they are being suckered into things not in their interests. However, current copyright law effectively restricts the use of this to very wealthy individuals and corporations for two reasons: (1) the vagueness of "fair use". (2) The costs of negotiating legal rights for the creative reuse of content are astronomically high. "You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely on fair use rights."[17]

Drawing on an argument Lessig made in [Code and Other Laws of Cyberspace] he applies the model of four different modalities of regulation that support or weaken a given right or regulation. The four means of regulation are law, market, architecture and norms [18]. These four modalities constrain the target group or individual in different ways, and law tends to function as an umbrella over the other methods. These constraints can be changed, also a restriction imposed by one constraint may allow freedoms from another. Lessig maintains that before the internet these constraints remained in balance with each other in regulating copying of creative works.[19]

However, government support of etabilished companies with an older form of doing business would preclude innovation induced competition and overall progress. Lessig says it best ‘ it is the special duty of policy makers to guarranttee that protection ot become a deterrant to progress’ [20] He specifies that his argument is not about justification of protection of copyrights but the effects of changing the law regarding copyright in the face of the Internet. In this regard he brings the example of the undoreseen effects on the environment of using the chemical pesticide DDT despite its its initial promise for commercial agriculture. Following this allusion he calls for an almost environmentalist awareness for the future of the creative environment. [21]

Copyright has changed from covering just books, maps and charts to any work today that has a tangible form including music to architecture and drama and software. Today it gives the copyright holder the exclusive right to publish the work and control over any copies of the work as well as any derivative work. Additionally, there is no requirement to register a work to get a copyright, it is automatic, whether or not you make a copy available for others to copy. Copyright law does not distinguish between transformative use of a work and duplication or piracy. The change in copyright scope today means that law regulates publishers, users, and authors, simply because all they are all capable of making copies. Before the internet, copies of any work were the trigger for copyright law, but Lessig raises the point of whether copies should always be the trigger, especially when considering the way digital media sharing works. [22]


In 1831 the term if copyright increased from a maximum of 28 years to a maximum of 42 years in 1909 the renewal term was extended from 14 years to 28 years. Beginning in 1962, the term of existing copyright was extended eleven times in the last 40 years. After 1976 any works created were subject to only one term of copyright, the maximum term, which was the life of the author plus fifty years, or seventy five years for corporations. According to Lessig the public domain becomes orphaned by these changes to copyright law. In the past thirty years the average term has tripled and has gone from about 33 years to 95 years. [23]

There are uses of copyrighted material that may involve copying that do not invoke copyright law, these are deemed fair uses. Fair use law denies the owner any exclusive right over such fair uses for public policy. The internet shifts the use of digital creative property, to one that is now regulated under copyright law. There is almost no use that is presumptively unregulated.[24]

Relatively recent changes in technology and copyright law have dramatically expanded the impact of copyright in five different dimensions:

  • The duration increased from an average of 32.2 years to 95 (for copyrights owned by corporations) between 1974 and 2004,[25] and it may yet be extended further, in violation of the constitutional requirement that the exclusive rights be "for limited times".
  • The scope has increased from regulating only publishers to now regulating just about everyone.[26]
  • The reach has expanded, because computers make copies with every view, and these copies are presumptively regulated.[27]
  • The control the copyright holder has over use has expanded dramatically, using the Digital Millennium Copyright Act to prosecute people with software that could defeat the limits built into the code used to distribute the product. The latter may limit how many times a person can view the material, whether copy and paste is allowed, whether and how much can be printed, and whether the copy can be loaned or given to anyone else.[28]
  • Increases in the concentration and integration media ownership provides unprecedented control over political discourse and the evolution of culture. "[F]ive companies control 85 percent of our media sources. ... [F]our companies control 90 percent of the nation's radio advertising revenues. ... [T]en companies control half of the nation's [newspapers]. ... [T]en film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenue."[29]

Lessig argues that some of these changes benefited society as a whole. However, the combined effects of the changes in these five dimensions has been to restrict rather than promote the Progress of Science and useful Arts, in apparent violation of the constitutional justification for copyright law. The negative impact on creativity can be seen in numerous examples throughout this book. A stark example of its impact on 'political discourse is the refusal by the major TV networks to run ads critical of the Bush administration's claims of Saddam Hussein's weapons of mass destruction during the period prior to the US invasion of Iraq in 2003, enforced by Supreme Court decisions that give stations the right to choose what they will and will not run.[30] Lessig claims that this kind of environment is not democratic [31] and that at no point in our history have we had fewer "legal right to control more of the development of our culture than now."[32]

Conclusions

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In conclusion, Lessig uses the disproportionate number of HIV and AIDS victims in Africa and other poor countries to further his argument that the current control of intellectual property--in this case, patents to HIV drugs--defy "common sense." He describes the drug company lobbying in the U.S. to prevent reduced prices for their drugs in Africa but he holds the government and society responsible for failing to "revolt" against this injustice. He calls for a "sensible patent policy" that could support the patent system but enable flexibility in distribution, a "sense of balance" he says once existed historically but has now been lost.

In the afterword, Lessig proposes practical solutions to the dispute over intellectual property rights, in hope that common sense and a proclivity toward free culture be revived. His ideas include emulating the structure of the Creative Commons in complement to copyright; invoking more formalities for in the exercise of creativity online (marking copyrighted work, registering copyrights, and renewing claims to copyright); limiting the role of the Copyright Office in developing marking systems; shorter copyright terms (enough to incentivize creativity, but no more) and simpler language; and moving the concerns of copyright out of the purview of expensive lawyers and more into public sphere.

Critical Reception

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In a review in the The New York Times, Adam Cohen found Free Culture to be a "powerfully argued and important analysis," where Lessig argues persuasively that we are in a crisis of cultural impoverishment. However, he says that "after taking us to this point, 300 pages into his analysis," Lessig "fails to deliver," and his proposals are both "impractical and politically unattainable."[33]

David Post argues that Lessig shows that "free culture" has always been a part of our intellectual heritage and illuminates the tension between the already created and not yet created. Although Post generally agrees with Lessig's argument, he does point out that copyrights are property rights and "property rights are, as a general rule, a good thing" and that Lessig does not do enough in his book to address this side of the debate. [34]

Derivative works

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A day after the book was released online, blogger AKMA suggested that people pick a chapter and make a voice recording of it, partly because they were allowed to. Users who commented volunteered to narrate certain chapters. Two days later, most of the book had been narrated.

Besides audio production, this book was also translated into Chinese, a project proposed by Isaac Mao and completed as a collaboration involving many bloggers from mainland China and Taiwan. Other translations include Catalan, Czech [2], French, Hungarian, Italian, Polish, Portuguese [3] and Spanish es:Cultura libre (libro)#Versiones.

Editions

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  • US 1st hardcover edition: ISBN 1-59420-006-8
  • US 1st paperback edition: ISBN 0-14-303465-0

Key Reference

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"References" of the form "Lessig (2004, p. _)" consider the free, online, U.S. letter size, portrait edition: Lessig, Lawrence (2004). Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF). Retrieved Feb. 18, 2012. {{cite book}}: Check date values in: |accessdate= (help)

References

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  1. ^ Lessig (2004, p. 162)
  2. ^ Lessig (2004, ch. 3)
  3. ^ Lessig (2004, ch. 7)
  4. ^ Lessig (2004, Preface)
  5. ^ Lessig (2004, Preface)
  6. ^ Lessig (2004, p. 1-3)
  7. ^ Lessig (2004, p. 3-7)
  8. ^ Lessig (2004, Preface)
  9. ^ Lessig (2004, p. 7)
  10. ^ Lessig (2004, p. 8)
  11. ^ Lessig (2004, p. 8)
  12. ^ Lessig (2004, p. 9)
  13. ^ Lessig (2004, p. 9)
  14. ^ Lessig (2004, Preface)
  15. ^ Lessig (2004, pp. 65)
  16. ^ Lessig (2004, pp. 68-69)
  17. ^ Lessig (2004, pp. 81)
  18. ^ Lessig (2004, p. 90)
  19. ^ Lessig (2004, pp. 90-94)
  20. ^ Lessig (2004, p. 128)
  21. ^ Lessig (2004, p. 98)
  22. ^ Lessig (2004, pp. 107-113)
  23. ^ Lessig (2004, pp. 102)
  24. ^ Lessig (2004, pp. 112)
  25. ^ Lessig (2004, p. 103)
  26. ^ Lessig (2004, p. 103-105, 125)
  27. ^ Lessig (2004, pp. 106-113, 125)
  28. ^ Lessig (2004, pp. 113-125)
  29. ^ Lessig (2004, pp. 125-134)
  30. ^ Lessig (2004, p. 130)
  31. ^ Lessig (2004, p. 128)
  32. ^ Lessig (2004, p. 131)
  33. ^ http://www.nytimes.com/2004/04/04/books/the-intellectual-imperialists.html?pagewanted=all&src=pm
  34. ^ Post, David. "Free Culture vs. Big Media". Free Culture vs. Big Media. Retrieved 26 February 2012.
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