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

content. That competition would continue to shrink type A sharing. It would inspire an extraordinary range of new innovators--ones who would have a right to the content, and would no longer fear the uncertain and barbarically severe punishments of the law.

In summary, then, my proposal is this:

The Internet is in transition. We should not be regulating a technology in transition. We should instead be regulating to minimize the harm to interests affected by this technological change, while enabling, and encouraging, the most efficient technology we can create.

We can minimize that harm while maximizing the benefit to innovation by

1. guaranteeing the right to engage in type D sharing;

2. permitting noncommercial type C sharing without liability, and commercial type C sharing at a low and fixed rate set by statute;

3. while in this transition, taxing and compensating for type A sharing, to the extent actual harm is demonstrated.

But what if "piracy" doesn't disappear? What if there is a competitive market providing content at a low cost, but a significant number of consumers continue to "take" content for nothing? Should the law do something then?

Yes, it should. But, again, what it should do depends upon how the facts develop. These changes may not eliminate type A sharing. But the real issue is not whether it eliminates sharing in the abstract. The real issue is its effect on the market. Is it better (a) to have a technology that is 95 percent secure and produces a market of size x, or (b) to have a technology that is 50 percent secure but produces a market of five times x? Less secure might produce more unauthorized sharing, but it is likely to also produce a much bigger market in authorized sharing. The most important thing is to assure artists' compensation without breaking the Internet. Once that's assured, then it may well be appropriate to find ways to track down the petty pirates.

But we're a long way away from whittling the problem down to this subset of type A sharers. And our focus until we're there should not be on finding ways to break the Internet. Our focus until we're there should be on how to make sure the artists are paid, while protecting the space for innovation and creativity that the Internet is.

5. Fire Lots of Lawyers

I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in the law of copyright. Indeed, I have devoted my life to working in law, not because there are big bucks at the end but because there are ideals at the end that I would love to live.

Yet much of this book has been a criticism of lawyers, or the role lawyers have played in this debate. The law speaks to ideals, but it is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law.

The evidence of this bending is compelling. I'm attacked as a "radical" by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate and significant figures in the history of this branch of the law. Many, for example, thought crazy the challenge that we brought to the Copyright Term Extension Act. Yet just thirty years ago, the dominant scholar and practitioner in the field of copyright, Melville Nimmer, thought it obvious.10

However, my criticism of the role that lawyers have played in this debate is not just about a professional bias. It is more importantly about our failure to actually reckon the costs of the law.

Economists are supposed to be good at reckoning costs and benefits. But more often than not, economists, with no clue about how the legal system actually functions, simply assume that the transaction costs of the legal system are slight.11 They see a system that has been around for hundreds of years, and they assume it works the way their elementary school civics class taught them it works.

But the legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done.

These costs distort free culture in many ways. A lawyer's time is billed at the largest firms at more than $400 per hour. How much time should such a lawyer spend reading cases carefully, or researching obscure strands of authority? The answer is the increasing reality: very little. The law depended upon the careful articulation and development of doctrine, but the careful articulation and development of legal doctrine depends upon careful work. Yet that careful work costs too much, except in the most high-profile and costly cases.

The costliness and clumsiness and randomness of this system mock our tradition. And lawyers, as well as academics, should consider it their duty to change the way the law works--or better, to change the law so that it works. It is wrong that the system works well only for the top 1 percent of the clients. It could be made radically more efficient, and inexpensive, and hence radically more just.

But until that reform is complete, we as a society should keep the law away from areas that we know it will only harm. And that is precisely what the law will too often do if too much of our culture is left to its review.

Think about the amazing things your kid could do or make with digital technology--the film, the music, the Web page, the blog. Or think about the amazing things your community could facilitate with digital technology--a wiki, a barn raising, activism to change something. Think about all those creative things, and then imagine cold molasses poured onto the machines. This is what any regime that requires permission produces. Again, this is the reality of Brezhnev's Russia.

The law should regulate in certain areas of culture--but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: "Will it do good?" When challenged about the expanding reach of the law, the lawyer answers, "Why not?"

We should ask, "Why?" Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away.

NOTES

Throughout this text, there are references to links on the World Wide Web. As anyone who has tried to use the Web knows, these links can be highly unstable. I have tried to remedy the instability by redirecting readers to the original source through the Web site associated with this book. For each link below, you can go to http://free-culture.cc/notes and locate the original source by clicking on the number after the # sign. If the original link remains alive, you will be redirected to that link. If the original link has disappeared, you will be redirected to an appropriate reference for the material.

PREFACE

1. David Pogue, "Don't Just Chat, Do Something," New York Times, 30 January 2000.

2. Richard M. Stallman, Free Software, Free Societies 57 ( Joshua Gay, ed. 2002).

3. William Safire, "The Great Media Gulp," New York Times, 22 May 2003.

INTRODUCTION

1. St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: Rothman Reprints, 1969), 18.

2. United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that there could be a "taking" if the government's use of its land effectively destroyed the value of the Causbys' land. This example was suggested to me by Keith Aoki's wonderful piece, "(Intellectual) Property and Sovereignty:

Notes Toward a Cultural Geography of Authorship," Stanford Law Review 48 (1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: Foundation Press, 1984), 1112-13.

3. Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong (Philadelphia: J. B. Lipincott Company, 1956), 209.

4. See "Saints: The Heroes and Geniuses of the Electronic Era," First Electronic Church of America, at www.webstationone.com/fecha, available at link #1.

5. Lessing, 226.

6. Lessing, 256.

7. Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at Internet Access and the Digital Divide," Pew Internet and American Life Project, 15 April 2003: 6, available at link #2.

8. This is not the only purpose of copyright, though it is the overwhelmingly primary purpose of the copyright established in the federal constitution. State copyright law historically protected not just the commercial interest in publication, but also a privacy interest. By granting authors the exclusive right to first publication, state copyright law gave authors the power to control the spread of facts about them. See Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193, 198-200.

9. See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), ch. 13.

10. Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club," New York Times, 17 January 2002.

11. Neil W. Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283.

"PIRACY"

1. Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield).

2. See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language in the Pepsi Generation," Notre Dame Law Review 65 (1990): 397.

3. Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay Up," Wall Street Journal, 21 August 1996, available at link #3; Jonathan Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free Speech, No One Wins," Boston Globe, 24 November 2002.

4. In The Rise of the Creative Class (New York: Basic Books, 2002), Richard Florida documents a shift in the nature of labor toward a labor of creativity. His work, however, doesn't directly address the legal conditions under which that creativity is enabled or stifled. I certainly agree with him about the importance and significance of this change, but I also believe the conditions under which it will be enabled are much more tenuous.

CHAPTER ONE: CREATORS

1. Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons (New York: Penguin Books, 1987), 34-35.

2. I am grateful to David Gerstein and his careful history, described at link #4. According to Dave Smith of the Disney Archives, Disney paid royalties to use the music for five songs in Steamboat Willie: "Steamboat Bill,"

"The Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1" (Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the Straw," was already in the public domain. Letter from David Smith to Harry Surden, 10 July 2003, on file with author.

3. He was also a fan of the public domain. See Chris Sprigman, "The Mouse that Ate the Public Domain," Findlaw, 5 March 2002, at link #5.

4. Until 1976, copyright law granted an author the possibility of two terms: an initial term and a renewal term. I have calculated the "average" term by determining the weighted average of total registrations for any particular year, and the proportion renewing. Thus, if 100 copyrights are registered in year 1, and only 15 are renewed, and the renewal term is 28 years, then the average term is 32.2 years. For the renewal data and other relevant data, see the Web site associated with this book, available at link #6.

5. For an excellent history, see Scott McCloud, Reinventing Comics (New York: Perennial, 2000).

6. See Salil K. Mehra,