Thought Paper: November 8

Lawrence Lessig’s Free Culture is an interesting presentation on “the nature and future of creativity” in a digital age. Although the book is about intellectual property, the point seems to be that Congress has been corrupted by the powerful (big media concerns) and that we live in a litigious society (hundred thousand dollar lawsuits against twelve year old girls). It is a situation where the threat of litigation acts more effectively that the actual regulations that govern society’s activities. It is an environment that rewards “deep pockets” and corporate agendas, regardless of the truth or righteousness of the cause.

He studies how the use of copyright’s ever expanding legislation and aggressive litigation by corporations to unilaterally protect copyrighted material has created a tyrannical environment that threatens to destroy free and creative culture. Lessig argues that Congress has overstepped its authority by continuing the extend copyright term limits—now at life plus 70 years for creators or 95 years for corporate ownership. These extensions renders moot the public domain of non-copyrighted material that can be expanded upon to create new culture—for the most part only material produced prior to 1923 is part of the public domain. I find this argument a bit flawed; Lessig gives examples of old out-of-publication books that can not be made into movies, music that can not be sampled to create new musical pieces, and out-of-circulation films without commercial value that sit and rot in movie canisters, but he ignores the artists, filmmakers, authors and musicians that constantly creating new creative content. I am not suggesting that these are good situations, but Lessig is oversimplifying the situation.

On litigation, he almost pardons the actions of the RIAA and MPAA in their vigorous litigations against average citizens and corporate infringers. He says that of course older companies will attempt to stop new competitors from gaining a foothold in their industry, it is their right and duty to do so. It is Congress’ corruptibility to corporate power and money that has created overly protectionist, knee-jerk copyright legislation. In addition, it is the politicization of the judiciary (he recently lost a Supreme Court decision, Eldred vs. Ashcroft—this book almost seems like a rant about that fact) and that is allowing the continued threat free culture. I find it odd that Lessig—he teaches Constitutional law at Stanford—was naive enough to think that politics do not affect legal decisions, even Supreme Court decisions.

A couple of other things begin to come to mind:

1. Lessig is not just pointing out the problems with creative or intellectual property, but he is railing against societal problems regardless of technology or creative product.
2. I wonder if the digital technology that caused the music industry to promote the protectionist legislation, will in fact render that “threat to free culture” a moot point. Has not the model of musicians self-publishing via the Internet (Radiohead), begun to circumvent the strangle hold the RIAA has on the music industry. Even with the draconian regulations of copyright and technology, is it not possible that the market will fix itself?

Lessig does offer a couple of solutions to what he perceives as the problem of over regulation of copyrights and the diminishing public domain. First, he suggests a reinstatement of registering and renewing copyright protect, in this way, only product with immediate commercial value would remain protected, and the rest would revert to public domain status. The second solution is Creative Commons; it is a pseudo-public domain where the creator allows various fair uses of their creative property. The first will take political will (doubtful) and the second is a personal initiative (if the artist cares).

I have taken a bit of a cynical view of Lessig's work, not because I do not agree with Lessig, I actually do for the most part. I buy into the idea that the big bad corporation will use its power, money and influence to affect legislation, that Congress will find the pro business-as-usual protect us from the big, dark digital unknown an attractive argument (campaign donations welcome) and the courts will rule based of political and commercial concerns (who really cares what the Constitution actually says). I agree with Lessig that the copyright, as it now stands, protects large commercial interests (Mickey Mouses of the world) without regard to the actual artist or the consequences of the over-reaching regulations. I agree that digital technologies have radically changing the old status-quot of the entertainment industry, but market conditions, not protectionist legislation should sort out the playing field. I just think that, even with the regulatory and legal obstacles, the new and innovative uses of the digital technology by the creator of creative products will out pace the tactics of big brother (corporate and governmental).