Will We Have to Pay to Create?

A Review of Free Culture by Lawrence Lessig

Diane Ragsdale

Lawrence Lessig sees Big Media waging war against culture in America. And he, for one, is fighting the battle. A professor at Stanford Law School, Lessig achieved notoriety when he represented web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. Eric Eldred was a man who wanted to build a library of derivative versions of public domain books (e.g., Hawthorne's A Scarlet Letter) and make them available for free on the Internet.

Lessig argued and lost the case before the Supreme Court. He recounts, with great regret, the story of Eldred v. Ashcroft in his latest book, Free Culture: How Big Media Uses Technology and Law to Lock Down Culture and Control Creativity. He goes on, however, to describe how losing the case changed his thinking about how this battle must be fought.

Lessig says Free Culture "is about the effect of the Internet upon how culture is made," and his warning to those who care about culture in America is this: if we continue to sit idly by and watch as corporations, threatened by the potential of the Internet to change the way culture is made and shared, band together and push for legislation to protect their interests (read: profits), we are putting in jeopardy our very freedom to create.

Lessig defines a "free culture" (free not as in "free coffee," but free as in "free speech" and "free trade") to be one that supports and protects creators and innovators. America's past was a free culture, he says, and if we want it to be our future, then we must actively resist becoming a "permission culture," in which creators must acquire the rights to create and innovate. Why we are increasingly a permission culture, and what is at risk if we continue down this path, is much the point of his book.

Lessig starts with a section on piracy, in which he walks the reader through the impact of music recordings, radio, cable TV, and VCRs on the entertainment industry. In much the same way that file-sharing on the Internet has launched an onslaught of lawsuits, the arrival of these other technologies on the market has spurred copyright holders to seek protection from the courts, claiming that the technologies promote piracy.

In each case, however, Congress ultimately recognized some legitimacy in the behavior of the alleged "pirates" and did not grant the copyright owners the control they sought over the new technologies. Lessig makes the point that just as the courts and Congress successfully balanced the interests at stake when making their determinations in these prior cases, we should be working now to find a way to "secure income for artists, while [allowing] the market to secure the most efficient way to promote and distribute [digital] content."

To more deeply understand these precedents and the idea of property as it relates to culture, Lessig spends time examining the history of copyright law - a law whose aim, when added to our Constitution in 1790, was not to control the freedom of others to build upon or transform a creative work. The clear goal of copyright law was to limit the terms of copyright in order to promote progress in the arts and sciences. Moving step-by-step through changes in legislation over the past one hundred years, Lessig paints a sobering picture of how Congress has repeatedly expanded the terms and reach of copyright law until, today, every realm of creative property is governed.

What does that mean? Fewer and fewer works are going into the public domain, and the definition of creative property is getting broader. In an October 2002 Wired News article, Kendra Mayfield writes, "If current copyright laws had been on the books when Jazz musicians were borrowing riffs from other artists in the 1930s and Looney Tunes illustrators were creating cartoons in the 1940s, entire genres such as hip-hop, collage and Pop Art might never have existed."

Lessig makes the point that this "locking down of culture" -- whereby the "old" seeks to maintain control over more and more of the "new" -- is the death of innovation. We are rapidly becoming a culture, says Lessig, "where only those who can pay will be allowed to create." Furthermore, he sees the nature of ever-changing laws and the increasing ease with which behavior can be tracked on the Internet creating an atmosphere of fear that is causing artists to self-censor or be driven underground to create their work.

Lessig provides an example of this with a young filmmaker and teacher, John Else, who was making a documentary about Wagner's Ring Cycle. During one scene the filmmaker was shooting some stagehands playing a board game, and in one corner of the room where filming was happening there was a television set playing an episode of "The Simpsons." When the filmmaker finished the film he attempted to clear the rights for 4.5 seconds of "The Simpsons" and was told by Fox that it would cost him $10,000. As the filmmaker feared being sued by Fox if he claimed "fair use" and couldn't afford to pay for the rights, he ultimately re-edited the film using different footage.

There are countless cases like Else's. In June of 2004 The New York Times ran an article mentioning several instances of university scholars trying to navigate a "labyrinth of permissions, waivers, and fees" in order to secure the rights to use content. In one example, the production manager of the Performing Arts Center at the University of Texas at Austin attempted for months to secure the rights to use a piece of music in a dance being choreographed by a faculty member for undergraduate students. She was unsuccessful, and the work was ultimately performed in silence.

The possibility of being sued and confusion over digital copyright protections in general has made artists and educators fearful of claiming the supposed "safe harbor" of "fair use" (a theoretical privilege in copyright law that allows limited use of copyrighted materials for educational or commentary purposes). On this topic, Lessig makes the point throughout his book that "fair use in America simply means the right to hire a lawyer and defend your right to create." This may be an option for the rich, but is far from feasible for most arts organizations, artists, and educators.

Lessig ends Free Culture with a look at the "rip, mix and burn" wars between entertainment companies and software-makers like Napster and their users, and by proposing a plan to get around the current impasse regarding file-sharing on the Internet.

To start, Lessig's plan (a modification of one by Harvard law professor William Fisher) takes into consideration that not all types of p2p (person-to-person) file-sharing over the Internet are the same. He differentiates four types of sharing: 1) as a substitute for purchasing, 2) as a way of sampling, 3) as a way of accessing something that is "out of print" but copyrighted, and 4) as a way of accessing something that is in the public domain or endorsed by the copyright owner. His plan seeks to maximize innovation, minimize harm to copyright owners, and provide a simple and fair compensation strategy for artists.

There are cases before the courts now that could affect legislation in this area. Funders looking to understand the impact of these cases on creation and innovation may want to read the last section of the book which outlines Lessig's and Fisher's plans. Lessig's book, by the way, is available for free under a creative commons license on his web site at www.lessig.org.

Free Culture is a surprisingly accessible and engaging read given the topic. To anyone seeking a deeper understanding of the Internet's impact on intellectual property law and the history of legislation in these areas, I recommend both Free Culture and Lessig's prior book, The Future of Ideas.

Diane Ragsdale is program associate, performing arts, the Andrew W. Mellon Foundation.

Free Culture, 2004, 345 pages, The Penguin Press, Penguin Group Inc., 375 Hudson Street, New York, NY 10014, $24.95 or free on Lessig's web site at www.lessig.org