Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity
by
Lawrence Lessig
The Penguin Press, New York, New York; 2004; ISBN 1-59420-006-8
345 pages $24.95
Reviewed by John D. Trudel, www.trudelgroup.com
Stanford Law School’s Professor Lessig is an icon. One of the leading scholars on the intersection of the Constitution and technology, he is perhaps best known for being Special Master of the Court (a surrogate judge) on the Microsoft case and for having sued Disney in the Supreme court over monopolistic practices.
Lessig is the paradox of paradoxes, an idealist who thinks the law should benefit society and promote balance, a lawyer who thinks excessive litigation is paralyzing, and that bad law (the law of prohibition) is on the road to turning us into a nation of criminals. He’s an honest man, and one who exudes talent, integrity, and altruism. He’s also sad, saying, “Free Cultures are cultures that leave a great deal open for others to build upon; unfree, or permission cultures, leave much less. Ours was a free culture. It is becoming much less so.” [pg. 30]
Free Culture is Lessig’s third book on the theme of how Congress and the courts have shifted the body of law intended to protect the new, twisting it to protect the old. It focuses on Copyright law and how the very fiber of our culture is being appropriated. The core claim of this book is “While the Internet has produced something wonderful and new, our government, pushed by big media to respond to this ‘something new,’ is destroying something very old.” [pg. 13]
This conflict, of course, is not the one you read about in the media. That rhetoric rages on two ideas: “piracy” and “property.” Lessig says it’s not that simple, and framing it that way is just clever propaganda. Jack Valenti, President of the Motion Picture Association of America (MPAA), did this in his testimony to Congress in 1982, “Creative Property must be afforded the same rights and protection (as) all other property.” [pg. 117]
Most would agree that corporations have property rights. But most would also agree that corporations shouldn’t be allowed permanent monopolies and that there should be a public domain. At what point does Mickey Mouse shift from a property to a monopoly. In 25 years? When Walt Disney died? Never? And does it matter?
For starters, it’s pretty clear that Valenti’s assertion is false, because the Constitution says so. Article One, Section Eight requires that after a “limited time” Congress must take back the rights that it has granted for creative property and return them to the public domain. Valenti isn’t arguing for property rights, he’s arguing for permanent monopolies and a change in the Constitution. [Chapter Ten]
Valenti’s view prevailed with Congress. And, much later, Lessig lost his case against Disney in the Supreme Court. Permanent copyrights, monopolies, are allowed, at least on the installment plan. When “the mouse” is threatened, lobbying money flows, Congress changes the law, and terms are extended. That’s been the trend for some time. Patent and Copyright law was quietly rewritten by Congress in the 90s to expand its purview and advantage incumbents.
Let’s look at consequences. Consider Jesse Jorden of Oceanside, NY, who in 2002 was a freshman at Rensselaer Polytechnic Institute, an excellent technological university. He got interested in search engines, and made some minor changes to one others had built. He extended it to work better by fixing a bug that could cause Microsoft file-sharing to crash.
His method allowed an index of the information on the system to be compiled, a Google-like technology. Unlike Google, Jesse made no money. He was just a kid tinkering with technology in an environment where that was precisely what he was supposed to do.
Computers, of course, work by making copies of files to display, print, or play. There was a lot on those computers: text, pictures, and, unfortunately for Jesse, some music files. He hadn’t put anything on the network. He’d tweaked a search engine he’d not himself built in a way that made it easier to use for the RPI community to get access to content that was already there, the vast majority of which had nothing to do with music. No matter, Jesse was branded a “pirate.”
The Recording Industry Association of America (RIAA) sued him and three other students he didn’t even know for the total sum of $100 billion. The cost of defending such a suit was in excess of $250,000, and, even if he won, Jesse wouldn’t get a dime of that back.
Best case, he’d have a piece of paper saying he’d won, and another piece of paper saying he and his family were bankrupt. Alternately, RIAA generously offered to settle for everything he owned. On June 23, 2003 Jesse wired his entire savings, some $12,000, to a lawyer working for the RIAA, and the case against him was then dismissed. [pp. 50-52]
Jon Else is a filmmaker, best known for his documentaries. In 1990 he was working on a documentary about Wagner’s Ring Cycle, and his focus was on stagehands. His goal was contrast, and the stagehands are a particularly funny and colorful element of opera.
During one of the performances, Else was shooting some stagehands playing checkers. In one corner of the room was a TV. While the stagehands played checkers and the opera company played Wagner, the TV played The Simpsons.
When Else’s film was finished, he had to “clear rights” for a few seconds of The Simpsons on a small screen in the background of some of his shots. He called the Simpson’s creator Matt Groening, who gave permission but said to check with his producer, Gracie Films. Gracie gave permission too, but said to check with Fox, Gracie’s parent company.
Else discovered that Groening either didn’t own rights to his creation, or someone at Fox didn’t think Groening owned rights to his creation. In either case, they wanted $10,000 for the unsolicited screen image in a corner of a shot in a documentary about Wagner’s Ring Cycle.
Now a lawyer will say this is “fair use,” and Else could have just used the shot. But the fact was he didn’t, because everyone knew Fox would “depose and litigate (him) to within an inch of (his) life.” [pp. 95-98] He edited the film to put something else on the TV screen.
The problems go much deeper than creativity being choked. Children are being sued and businesses destroyed. Consider MP3.com, whose business model was allowing customers to hear music they already owed. The firm thought it was a “legal” Napster, because it would only serve content to customers who had authenticated they already owned the CDs being shared.
But RIAA sued and a judge agreed, fining MP3.com $118 million. A year later MP3.com was purchased by one of the RIAA members who’d sued, Vivendi. The new owner then sued the lawyers who’d advised MP3.com that letting customers listen to the music they already owned was legal.
In 2003 that strategy was extended beyond lawyers to the financial community. Hummer Winblad, the Venture Capital firm who’d committed the “crime” of funding Napster is being sued by Universal and EMI. The message is clear: The mega-cartels rule. [pp. 190-191]
Lessig argues if it’s electronic, the public domain is all but gone. In effect, big media owns our news and entertainment, and increasingly our myths and history. If you want to research contemporaneous reports about some past event – perhaps an election or the Cuban Missile Crisis – you can still go to a library and copy pieces of paper (newspapers and magazines). But not electronic images or recordings, at least not easily, because they’re controlled by big media.
Our past is off limits. Since the law now presumes everything to be copyrighted, old materials that no one cares about or whose owners are long gone are inaccessible. Old works crumble into dust, because of predatory behemoths and Draconian law. Clearing rights is difficult to impossible. In most cases you can’t even identify who – if anyone – owns the rights.
Since culture is public and increasingly electronic, it bothers Lessig that big media increasingly owns the very fabric of our society. It bothers him more that he lost the key case in the Supreme Court that might have changed this. (“Honey, I shrunk the Constitution.”) He offers reasoned, practical solutions [pp. 287-306], but the public is generally unaware a problem even exists. Reading this book could be a first step towards fixing that.
***
John D. Trudel, CMC, helps firms with innovation, business creation, planning, and governance. He can be found at www.trudelgroup.com or email jtrudel@trudelgroup.com or call 503-538-1169 (v).
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