Butterflies May Be Free, But Should Expression Be?

A Review of Lawrence Lessig's Free Culture


Friday, Apr. 16, 2004

Read Stanford law professor Lawrence Lessig's new book Free Culture and you're likely to agree with his conclusion that he's told a "dark story."

The way Lessig sees it, big bad media companies and their henchmen in Washington are threatening to all but obliterate creative expression. Like some Hollywood mafia family, the conglomerates and their lawyers are using copyright law as a club against well-meaning artists, and extorting music-downloading teenagers out of their last dimes.

After awhile, it's tempting to roll your eyes at all these gloomy pronouncements by an author seemingly striving for the title of the Internet age's Nostradamus.

But dig beneath the proclamations of doom, and you'll find that Free Culture is yet another book well worth reading by one of the nation's most thoughtful cyberlawyers.

Beyond the Internet: Lessig's Larger Point Encompasses Other Technologies, Too

Here, in his third book, Lessig expands beyond the Internet his previous warnings about the threat technology poses to "free culture."

Lessig projects that, in an ideal world, new technologies could allow low-cost access to almost all creative content ever made, much of which no longer has any commercial value anyway. He envisions the building of virtual libraries on the web that would be akin to the wonder of the world built in ancient Alexandria. A world of tinkerers, according to Lessig's vision, could create new content by borrowing from all that's come before.

But Lessig charges that this glorious future is threatened by giant media companies who are stifling creativity in the name of fighting piracy. They're going too far, he argues, by rigidly enforcing copyright laws and limiting what flows into the public domain after its commercial value has shrunk. And the issue isn't limited to the Internet -- it affects virtually all copyrightable material, meaning any fixed expression that the law protects.

Lessig's Argument: Honor a Long American Tradition of Creative Borrowing

As Lessig notes, there is a long tradition of such borrowing. Walt Disney's first cartoon with synchronized sound, "Steamboat Willie," was a rip off of an earlier silent film. Fox was the Napster of its era, fleeing to the West Coast to escape scrutiny for its infringement of patents granted to filmmaking's inventor, Thomas Edison. Indeed, Lessig argues pretty much every innovation in film, records, radio and cable TV since Eastman's Kodak instant camera involved borrowing technologies that preceded them without asking.

Now, you might want to Lessig's tour of Twentieth Century media innovation with a grain of salt. But it's hard to argue with his conclusion: if piracy means using the creative property of others without their permission, then "the history of the content industry is a history of piracy."

Having established this tradition of "borrowing" and its beneficial effect, Lessig asks readers to consider whether the harms of peer-to-peer file sharing like Napster and its progeny really outweigh the benefits. After all, the jury is still out whether file sharing is more likely to eat away at record sales, or to give listeners a way to sample new products they later buy, and provide access to tunes no longer available in stores.

Lessig Isn't Pro-Piracy -- He's Pro-Balancing

Still, Lessig is hardly endorsing all piracy in Free Culture. What he asks for, instead, is greater balance than the "copyright warriors" in the entertainment industry demand. Lessig suggests the balance has been tipped in their favor in two ways: By harsher laws, and longer copyrights, and by better copyright-protecting technologies.

Lessig rejects the notion that intellectual property deserves the same protection as real property, and decries the creeping expansion of copyright protections in recent decades.

Lessig notes that the length of copyrights has tripled in the last 30 years, most recently thanks to an act of Congress named after the late Sonny Bono. And he flagellates himself for his lack of success when he tried convincing the Supreme Court, a few years ago, that such lengthy extensions violated the constitution's Copyright Clause, which that secures exclusive rights to authors only for "limited times." (See Eldred v. Ashcroft for the reasons the Court rejected his argument.)

Yet 98 percent of such copyrighted material is no longer commercially viable, Lessig points out -- why protect what is valueless except to those few who want to borrow from it, and now cannot?

What's more, Lessig notes, technology now makes it easier to catch non-compliers and supplement legal protections with limits built into hardware. Plus, media concentration means the freedom to "cultivate and build on the past" is increasingly held by a few.

Instead, he suggests copyright law should keep the same balance as in the past when new technologies emerged.

Lessig's Book is Accessible to Nonlawyers, But Unfair to Media Companies

Lessig's last book, The Future of Ideas, was at times weighed down by passages on technology that were less than accessible. In contrast, Lessig's Free Culture does a good job of presenting legal battles and the basics of copyright law in laymen's terms. It's a useful primer for non-lawyers, or even lawyers like me who regret not taking intellectual property courses back in law school.

What is less easy to swallow, however, is the unrelenting scorn Lessig heaps on the leading media empires and their Washington lobbyists.

Lessig lays it on particularly thick when discussing the case of Jesse Jordan, a Long Island teenager who gets into trouble his freshmen year of college while building a Google-like search engine of files on his college computer network.

With a quarter of the files music, Jordan's search engine quickly draws the attention of the Recording Industry Association of America (RIAA). Indeed, the RIAA threatened to file a $15 million copyright infringement lawsuit against poor Jordan.

Lessig charges that the RIAA put Jordan to a "mafia-like choice:" pay $250,000 in lawyers' fees, or fork over his $12,000 in savings. Unsurprisingly, the $12,000 was an offer he couldn't refuse: Jordan settled.

Lessig's contempt for the RIAA is perhaps matched only for his dislike for the Motion Picture Association of America (MPAA)'s Jack Valenti, who recently hinted he will finally step down after 38 years as the movie industry's chief lobbyist. Lessig unfairly ascribes the darkest of intentions to every utterance from either of these two powerful interest groups.

After this book, it's hard to imagine Lessig shedding a tear when Valenti vacates his throne or, for that matter, to imagine Lessig earning a spot at the retirement dinner -- not that Lessig would take it if offered.

But even his biggest detractors should probably read this book too.

Seth Stern is a legal affairs reporter for Congressional Quarterly in Washington D.C.