Free Culture by Lawrence Lessig (ereader iphone .TXT) 📖

illusion about the extremism of our government, whether Republican or Democrat. My only illusion apparently is about whether our government should speak the truth or not.)

Obviously, however, the poster was not supporting that idea. Instead, the poster was ridiculing the very idea that in the real world, the "goal" of a government should be "to promote the right balance" of intellectual property. That was obviously silly to him. And it obviously betrayed, he believed, my own silly utopianism. "Typical for an academic," the poster might well have continued.

I understand criticism of academic utopianism. I think utopianism is silly, too, and I'd be the first to poke fun at the absurdly unrealistic ideals of academics throughout history (and not just in our own country's history).

But when it has become silly to suppose that the role of our government should be to "seek balance," then count me with the silly, for that means that this has become quite serious indeed. If it should be obvious to everyone that the government does not seek balance, that the government is simply the tool of the most powerful lobbyists, that the idea of holding the government to a different standard is absurd, that the idea of demanding of the government that it speak truth and not lies is just naïve, then who have we, the most powerful democracy in the world, become?

It might be crazy to expect a high government official to speak the truth. It might be crazy to believe that government policy will be something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history--free culture.

If this is crazy, then let there be more crazies. Soon.

 

There are moments of hope in this struggle. And moments that surprise. When the FCC was considering relaxing ownership rules, which would thereby further increase the concentration in media ownership, an extraordinary bipartisan coalition formed to fight this change. For perhaps the first time in history, interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women for Peace organized to oppose this change in FCC policy. An astonishing 700,000 letters were sent to the FCC, demanding more hearings and a different result.

This activism did not stop the FCC, but soon after, a broad coalition in the Senate voted to reverse the FCC decision. The hostile hearings leading up to that vote revealed just how powerful this movement had become. There was no substantial support for the FCC's decision, and there was broad and sustained support for fighting further concentration in the media.

But even this movement misses an important piece of the puzzle. Largeness as such is not bad. Freedom is not threatened just because some become very rich, or because there are only a handful of big players. The poor quality of Big Macs or Quarter Pounders does not mean that you can't get a good hamburger from somewhere else.

The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can call upon an equally bloated range of rights--property rights of a historically extreme form--that makes their bigness bad.

It is therefore significant that so many would rally to demand competition and increased diversity. Still, if the rally is understood as being about bigness alone, it is not terribly surprising. We Americans have a long history of fighting "big," wisely or not. That we could be motivated to fight "big" again is not something new.

It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within the idea of "intellectual property." Not because balance is alien to our tradition; indeed, as I've argued, balance is our tradition. But because the muscle to think critically about the scope of anything called "property" is not well exercised within this tradition anymore.

If we were Achilles, this would be our heel. This would be the place of our tragedy.

 

As I write these final words, the news is filled with stories about the RIAA lawsuits against almost three hundred individuals. 11 Eminem has just been sued for "sampling" someone else's music. 12 The story about Bob Dylan "stealing" from a Japanese author has just finished making the rounds.13 An insider from Hollywood--who insists he must remain anonymous--reports "an amazing conversation with these studio guys. They've got extraordinary [old] content that they'd love to use but can't because they can't begin to clear the rights. They've got scores of kids who could do amazing things with the content, but it would take scores of lawyers to clean it first." Congressmen are talking about deputizing computer viruses to bring down computers thought to violate the law. Universities are threatening expulsion for kids who use a computer to share content.

Yet on the other side of the Atlantic, the BBC has just announced that it will build a "Creative Archive," from which British citizens can download BBC content, and rip, mix, and burn it.14 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero of Brazilian music, has joined with Creative Commons to release content and free licenses in that Latin American country.15

I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed. It will take some thought, and more importantly, it will take some will to transform the RCAs of our day into the Causbys.

Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized.

AFTERWORD

 

At least some who have read this far will agree with me that something must be done to change where we are heading. The balance of this book maps what might be done.

I divide this map into two parts: that which anyone can do now, and that which requires the help of lawmakers. If there is one lesson that we can draw from the history of remaking common sense, it is that it requires remaking how many people think about the very same issue.

That means this movement must begin in the streets. It must recruit a significant number of parents, teachers, librarians, creators, authors, musicians, filmmakers, scientists--all to tell this story in their own words, and to tell their neighbors why this battle is so important.

Once this movement has its effect in the streets, it has some hope of having an effect in Washington. We are still a democracy. What people think matters. Not as much as it should, at least when an RCA stands opposed, but still, it matters. And thus, in the second part below, I sketch changes that Congress could make to better secure a free culture.

US, NOW

Common sense is with the copyright warriors because the debate so far has been framed at the extremes--as a grand either/or: either property or anarchy, either total control or artists won't be paid. If that really is the choice, then the warriors should win.

The mistake here is the error of the excluded middle. There are extremes in this debate, but the extremes are not all that there is. There are those who believe in maximal copyright--"All Rights Reserved"-- and those who reject copyright--"No Rights Reserved." The "All Rights Reserved" sorts believe that you should ask permission before you "use" a copyrighted work in any way. The "No Rights Reserved" sorts believe you should be able to do with content as you wish, regardless of whether you have permission or not.

When the Internet was first born, its initial architecture effectively tilted in the "no rights reserved" direction. Content could be copied perfectly and cheaply; rights could not easily be controlled. Thus, regardless of anyone's desire, the effective regime of copyright under the original design of the Internet was "no rights reserved." Content was "taken" regardless of the rights. Any rights were effectively unprotected.

This initial character produced a reaction (opposite, but not quite equal) by copyright owners. That reaction has been the topic of this book. Through legislation, litigation, and changes to the network's design, copyright holders have been able to change the essential character of the environment of the original Internet. If the original architecture made the effective default "no rights reserved," the future architecture will make the effective default "all rights reserved." The architecture and law that surround the Internet's design will increasingly produce an environment where all use of content requires permission. The "cut and paste" world that defines the Internet today will become a "get permission to cut and paste" world that is a creator's nightmare.

What's needed is a way to say something in the middle--neither "all rights reserved" nor "no rights reserved" but "some rights reserved"-- and thus a way to respect copyrights but enable creators to free content as they see fit. In other words, we need a way to restore a set of freedoms that we could just take for granted before.

 

Rebuilding Freedoms Previously Presumed: Examples

If you step back from the battle I've been describing here, you will recognize this problem from other contexts. Think about privacy. Before the Internet, most of us didn't have to worry much about data about our lives that we broadcast to the world. If you walked into a bookstore and browsed through some of the works of Karl Marx, you didn't need to worry about explaining your browsing habits to your neighbors or boss. The "privacy" of your browsing habits was assured.

What made it assured?

Well, if we think in terms of the modalities I described in chapter 10, your privacy was assured because of an inefficient architecture for gathering data and hence a market constraint (cost) on anyone who wanted to gather that data. If you were a suspected spy for North Korea, working for the CIA, no doubt your privacy would not be assured. But that's because the CIA would (we hope) find it valuable enough to spend the thousands required to track you. But for most of us (again, we can hope), spying doesn't pay. The highly inefficient architecture of real space means we all enjoy a fairly robust amount of privacy. That privacy is guaranteed to us by friction. Not by law (there is no law protecting "privacy" in public places), and in many places, not by norms (snooping and gossip are just fun), but instead, by the costs that friction imposes on anyone who would want to spy.

Enter the Internet, where the cost of tracking browsing in particular has become quite tiny. If you're a customer at Amazon, then as you browse the pages, Amazon collects the data about what you've looked at. You know this because at the side of the page, there's a list of "recently viewed" pages. Now, because of the architecture of the Net and the function of cookies on the Net, it is easier to collect the data than not. The friction has disappeared, and hence any "privacy" protected by the friction disappears, too.

Amazon, of course, is not the problem. But we might begin to worry about libraries. If you're one of those crazy lefties who thinks that people should have the "right" to browse in a library without the government knowing which books you look at (I'm one of those lefties, too), then this change in the technology of monitoring might