Free Culture

After sitting in my stuff-to-read folder on my hard drive for over a year, I finally got around to reading Lawrence Lessig’s Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, which is available for free download under a Creative Commons license (as is this blog, though I’m sure that’s less exciting to most of you... or should be!). Well, ‘read’ isn’t exactly the right term, since I listened to the free audiobook on my iPod thanks to these folks. The chapters were recorded by different people, and were of varying quality, but were certainly good enough that I didn’t have to revert to the PDF version. The book (and the audiobook version) get my recommendation.

I found many aspects of Free Culture enlightening. I had expected to find many of the historical example of how intellectual property law developed and responded (through legislation and the courts) to technological and social change, and I was not disappointed. I hadn’t expected to learn that the emphasis placed on fair use by advocates of against DRM, etc., is misplaced:
In real space, then, the possible uses of a book are divided into three sorts:(1) unregulated uses, (2) regulated uses, and (3) regulated uses that are nonetheless deemed “fair” regardless of the copyright owner’s views.
        Enter the Internet—a distributed, digital network where every use of a copyrighted work produces a copy. And because of this single, arbitrary feature of the design of a digital network, the scope of category 1 changes dramatically. Uses that before were presumptively unregulated are now presumptively regulated. No longer is there a set of presumptively unregulated uses that define a freedom associated with a copyrighted work. Instead, each use is now subject to the copyright, because each use also makes a copy—category 1 gets sucked into category 2. And those who would defend the unregulated uses of copyrighted work must look exclusively to category 3, fair uses, to bear the burden of this shift.
        So let’s be very specific to make this general point clear. Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that the copyright owner could make to control that use of her book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed. None of those instances of use—reading—could be regulated by copyright law because none of those uses produced a copy.
        But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control, because of the accidental feature of copyright law that triggers its application upon there being a copy. Now if you read the book ten times and the license says you may read it only five times, then whenever you read the book (or any portion of it) beyond the fifth time, you are making a copy of the book contrary to the copyright owner’s wish.
        There are some people who think this makes perfect sense. My aim just now is not to argue about whether it makes sense or not. My aim is only to make clear the change. Once you see this point, a few other points also become clear:
        First, making category 1 disappear is not anything any policy maker ever intended. Congress did not think through the collapse of the presumptively unregulated uses of copyrighted works. There is no evidence at all that policy makers had this idea in mind when they allowed our policy here to shift. Unregulated uses were an important part of free culture before the Internet.
        Second, this shift is especially troubling in the context of transformative uses of creative content. Again, we can all understand the wrong in commercial piracy. But the law now purports to regulate anytransformation you make of creative work using a machine. “Copy and paste” and “cut and paste”become crimes. Tinkering with a story and releasing it to others exposes the tinkerer to at least a requirement of justification. However troubling the expansion with respect to copying a particular work, it is extraordinarily troubling with respect to transformative uses of creative work.
        Third, this shift from category 1 to category 2 puts an extraordinary burden on category 3 (“fair use”) that fair use never before had to bear. If a copyright owner now tried to control how many times I could read a book on-line, the natural response would be to argue that this is a violation of my fair use rights. But there has never been any litigation about whether I have a fair use right to read, because before the Internet, reading did not trigger the application of copyright law and hence the need for a fair use defense. The right to read was effectively protected before because reading was not regulated.
        This point about fair use is totally ignored, even by advocates for free culture. We have been cornered into arguing that our rights depend upon fair use—never even addressing the earlier question about the expansion in effective regulation. A thin protection grounded in fair use makes sense when the vast majority of uses are unregulated. But when everything becomes presumptively regulated, then the protections of fair use are not enough. (p.143–45)

Lessig is also pleasingly upfront about the limitations of the law, and hence the limited value of fair use as a legal exception within an otherwise regulated domain:
[F]air use in America simply means the right to hire a lawyer to defend your right to create. And as lawyers love to forget, our system for defending rights such as fair use is astonishingly bad—in practically every context, but especially here. It costs too much, it delivers too slowly,and what it delivers often has little connection to the justice underlying the claim. The legal system may be tolerable for the very rich. For everyone else, it is an embarrassment to a tradition that prides itself on the rule of law.
        Judges and lawyers can tell themselves that fair use provides adequate “breathing room” between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers,the rules that film distributors impose upon filmmakers,the rules that newspapers impose upon journalists—these are the real laws governing creativity. And these rules have little relationship to the “law”with which judges comfort themselves.
        For in a world that threatens $150,000 for a single willful infringement of a copyright,and which demands tens of thousands of dollars to even defend against a copyright infringement claim,and which would never return to the wrongfully accused defendant anything of the costs she suffered to defend her right to speak—in that world,the astonishingly broad regulations that pass under the name “copyright” silence speech and creativity. And in that world,it takes a studied blindness for people to continue to believe they live in a culture that is free. (p.187)

The building of a permission culture, rather than a free culture, is the first important way in which the changes I have described will burden innovation. A permission culture means a lawyer’s culture—a culture in which the ability to create requires a call to your lawyer. Again, I am not antilawyer, at least when they’re kept in their proper place. I am certainly not antilaw. But our profession has lost the sense of its limits. And leaders in our profession have lost an appreciation of the high costs that our profession imposes upon others. The inefficiency of the law is an embarrassment to our tradition. And while I believe our profession should therefore do everything it can to make the law more efficient, it should at least do everything it can to limit the reach of the law where the law is not doing any good. The transaction costs buried within a permission culture are enough to bury a wide range of creativity. Someone needs to do a lot of justifying to justify that result. (p.192–93)

[T]he 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. (p.305)

Lessig’s point about the limitations of the legal system is well taken. I think that the failings of the legal system in this country raise serious questions about the ability of the judiciary to function as an effective remedy for citizens against acts of the other branches of government. While the judiciary may be no less powerful as a check against the other branches formally, it may still be a much less powerful check in practice. Lessig’s point about changing technology having an impact on the protections afforded by the law would seem to apply as well to increasing costs, declining care by practitioners of the law, and the ever increasing scope of government regulation: they alter the protections afforded by the law. In the latter case, these protections would seem to have waned.


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25 May, 2006 05:18  

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