Lawrence Lessig, Author. Penguin Press $24.95 (345p) ISBN 978-1-59420-006-9
By Parujee Akarasewi
This book was originally conceived by Lawrence Lessing, a Harvard law school professor, lawyer and notary, in response to his loss before the Supreme Court in the case of Eldred v. Ashcroft, after the US Federal Communication Commission authorized the concentration of media ownership. At the beginning of the book in the Preface, the author has compared the present book with his previous book, “Code and other laws of cyberspace”, which concentrated deeply on the effect of law on software. The author states that this book continues from the previous one in the sense that all of our traditions are affected by the internet as a primary factor. Furthermore, the author argues that the recent changes in US law and administration threaten the future of human society. He defends “free culture” as freedom balanced with control. He sees culture as the growth of creativity when built upon permission when using the intellectual property of others. The author introduces two terms important to a culture of freedom and permission which are developed throughout the book.
In Chapter 1, “copycat” is used for creators who borrow and build upon the creativity of others without the permission of, or any payment to, the originators of an idea. The author also develops his argument on the concept of “free” for all cultures to a certain degree with two concrete examples: Steamboat Willie vs Steamboat Bill, Jr., and Doujinshi copycat (“fanfic”) comics vs Japanese manga comic books. Mickey Mouse’s commercial rise started in 1928 with Steamboat Willie, which parodied Buster Keaton’s silent film, Steamboat Bill, Jr., marrying the animation with an innovation recently introduced by The Jazz Singer, sound. With copyright as it was in 1928, this was not a problem for Disney – limited term copyrights (that weren’t always asserted) and a vibrant public domain meant that such borrowings were the norm. The laws of the time acted to increase competition and allow more entertainment company industries to grow. This case is in some ways similar to Doujinshi in the Japanese comic market: copycat Doujinshi have flourished despite transgressing the current Japanese copyright laws, and have helped the mainstream comic market. The manga industry has learned to work in harmony with Doujinshi comics without attempting to banish or penalize them, which could damage the benefit they have conferred on the industry.
Next, the author talks about the impact of technology and the influence of law on culture. The author starts with Eastman Kodak’s innovations that made possible the spread of photography in popular culture, along with the legal challenge they surmounted: “Courts were asked whether the photographer, amateur or professional, required permission before he could capture and print whatever image he wanted. Their answer was no.” That is to say, a photographer need not get permission to photograph a subject. Kodak’s innovation (print film) and the legal climate made possible the democratization of photography. In this chapter, democracy of expression is a primary theme that the author offers to the readers to think on, with many examples of developed technologies calling for media literacy, such as the Internet, email, blogging, etc. The possibility is that these technologies, democratized and understood, can further freedom and democracy and serve as a counterweight to traditional media, but the possibility of passive consumption of the media is ever-present. The technology allows great reach of images, sound and commentary, but the law has attempted to curtail these possibilities.
In the next chapter, the author shares a story about a student, Jess Jordan, who developed an early search engine for Rensselaer Polytechnic Institute based on the Microsoft Windows file sharing system in 2002. The Recording Industry Association of America sued him for damages of $15,000,000 for music files found in some of the shared files that were indexed by his search engine. The economics of legal proceedings forced Jess to settle by providing the RIAA his savings, which has since pushed him into activism.
In Chapter 4 the author comes to the conclusion that, “If “piracy” means using value from someone else’s creative property without permission from that creator — as it is increasingly described today — then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV. . . . The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation — until now.” Lessig goes on to explain to us that every entertainment industry was born through “piracy” of intellectual property. Lessig argues that our tradition has never stopped or punished the “piracy” of the recording, radio, cable TV or even VCR industries — indeed, the law has normalized practices such as radio playing recordings without paying the recording artists. In the next chapter, the author has emphasized the importance of copyright law, and has asked for greater balance in the law, supporting intellectual property with cultural freedom. He points out that piracy can be a very grey area, ranging from copy shops that profit from piracy to downloaders who download items that they would be otherwise unable to source. At the end of this chapter, the writer introduces us to the concept of copyright as property, but not in the same sense as tangibles.
Lessig goes on to give the history of copyright law, how it started with the effort to gain control over print production in European countries. This was used by Henry VII in England for granting print monopolies. In England, the Crown’s practice of handing out monopolies became quite unpopular and was one of the issues that motivated the English Civil War of 1642–1651, notably as it affected print editions of the Bible. By the mid-18th century, a group of English publishers controlled the trade, even to the point of holding a monopoly of Shakespeare in conflict with the Statute of Anne setting fixed-length terms for copyright, by claiming that the statute didn’t extinguish common law rights. “Many believed the power the [publishers] exercised over the spread of knowledge was harming that spread.” The House of Lords in 1774, functioning like the Supreme Court of the United States does today, determined that, in granting a copyright, “The state would protect the exclusive right [to publish], but only so long as it benefited society.” They accordingly enforced the limits set by the Statute of Anne to copyright terms, leading to the birth of the public domain.
Lessig continues with an anecdote about a filmmaker, Jon Else, making a documentary in 1990 about Wagner’s Ring cycle, who wanted to clear a clip of the stagehands that showed 4.5 seconds of a television in the background playing The Simpsons. Else received permission from all the Simpsons’ creators except Fox, who wanted to charge $10,000 for the privilege of showing something that was undoubtedly fair use. However, “fair use” as a defence tends to favour litigants with deep enough pockets to press the claim. Many of us can be sued if we make a collage of video clips because it is a sort of derivative work by collection of copyrighted parts.
Multinational corporations have pushed a concept of IP ownership as equivalent to tangible property to maintain their control of IP, bolster their profits and decrease the free exchange of ideas. The writer argues that the growth of creative arts and culture has been significantly limited in the violation of the US constitution, which recognized intellectual property as different from tangibles, and set limits on the term of ownership so as to benefit society. The Supreme Court has deferred copyright issues to Congress as the ruling authority, and Congress has tended to side with the multinationals. Professor Lessig argues that the existence of the concept of piracy and property in the intellectual property domain has compromised the process of making law in a depressing fashion.
Lessig concludes his book by suggesting that society should participate in a collaborative information society by choosing to be free, or accept an essentially feudal society. The writer suggests the model of Richard Stallman, the free software pioneer, of making content subject to copyright terms that mandate the freedom of the property. To this end he created the Creative Commons organization to encourage and create templates for copyright licences of this sort. Lessig doesn’t see this as precluding corporate models such as Westlaw and LexisNexis, which have clients paying for a product that is essentially in public domain.
Lessing has argued for copyright limitation, shortening the renewable period of copyright and loosening the control of derivative rights (for example, the publisher’s control over copies of Lessig’s work on the Internet for non-commercial purposes), creating a requirement licensing plan to be certain that creators will receive direct royalties for their work based upon usage numbers, and also an efficient taxation plan which has been suggested by William Fisher of Harvard Law School. It is very much in the footsteps of Stallman’s proposals.
To my mind, Professor Lessig has focused on the emergence of legal and commercial trends that have resulted from the Internet’s amazing capacity for innovation. The creations that led to these have changed through the time through the “piracy” of past creations. He presents a catalog of cases that arose through technological innovations in film, music, radio and television as illustrations, because piracy was the midwife of all of these industries. He defines piracy in two ways: stealing for one’s own benefit, but cutting into the income of creators; and the other is to strike a balance between the interests of IP owners and society to create a new business model. He makes a strong case for the balance between owners and society so that we can have freely available culture that encourages new creation: this would be better than imposing limits or bans on the reuse of intellectual property. His review on the array of legal actions, limitations on P2P sharing and so forth reveals an open hole in the law which has allowed the “middlemen” in the media industries to effectively roll back the gains in the availability of intellectual property to the situation of perpetual monopoly that obtained before the House of Lords confirmed the Statute of Anne — such a situation stifles both competition and creativity. I personally think that the reason why the writer intended to make this book available and accessible to everyone was to create, “kick start” so to speak, a culture of freedom in copyright law so that tomorrow’s culture may grow without hindrance out of today’s.
Lessig, L. (2005). Free culture: the nature and future of creativity. New York, N.Y.: Penguin.