Free culture vs. big media: Lawrence Lessig leads the charge to retake the public domain

Reason, Nov, 2004 by David G. Post

Free culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig, New York: Penguin Press, 240 pages, $24.9;

EIGHT YEARS AGO in this magazine, I wrote about the "First Internet War": the Church of Scientology's use of copyright as a weapon against online critics who were circulating copyrighted material belonging to the church. (See "New World War," April 1996.) The case, I suggested, raised a series of "difficult and important legal issues that courts are likely to be struggling with for some time": How can copyright law, designed for the world of atoms, "take account of the strange features of this new informational landscape" in the world of bits?

Since then the questions have only become more difficult and more important, what with Napster, the recording industry's campaign against file sharing, the Digital Millennium Copyright Act, e-books, open-source software, open-access journals, TiVo, the Grey Album, and so on. Copyright law and copyright problems have gone mainstream; now everyone is thinking about copyright, and everyone--save perhaps for the most hidebound record company executive, or maybe former Motion Picture Association of America head Jack Valenti--recognizes that the technology is ushering us into a new kind of copyright space. But what does that space look like? What should it look like?

Enter Lawrence Lessig, who has transformed himself from a relatively obscure Stanford law professor toiling away in the academic vineyards into one of the best-known public intellectuals on the planet. Whenever talk turns to intellectual property and cyberspace, it seems, Lessig's name is invoked.

In Free Culture, his third and best book, Lessig shows his hand. He has a cause, and he wants us to rally to it. The cause is the protection of that imaginary piece of real estate known as "the public domain" and the "free culture" that has always, Lessig argues, been built upon and interleaved with it--the culture of transformative art, of sharing and borrowing and reborrowing and retransforming, of collages, cover versions, dramatizations, fictionalizations, and adaptations--the whole universe of ways new art builds upon and emerges from old.

It must be said that law professors usually do not make good rabble-rousers. Good rabble-rousers must engage the public's emotions. Law professors serve the goddess of reason alone, and she is a jealous mistress. Our arguments are too esoteric, our prose is too dense, we are too fond of abstraction and of argument for argument's sake, to rally people to fight under a common banner. The hyperrational discourse of the law school classroom and law journals is not, generally speaking, good training for populists.

Of course, bad rabble-rousers also engage people's emotions; when it strays too far from reasoned argument, rabble-rousing becomes demagoguery. It's a notoriously difficult line to walk, but when it is done well--judged on the terms not of the academician's debate but of the public's--it is honorable work. And in Free Culture, Lessig does it well.

Lessig succeeds in showing that "free culture" has always been a vibrant part of our intellectual heritage. There's not a musical phrase, a scene from a movie, or an essay on a blog that does not borrow something from earlier work. Scott Joplin borrows from W.C. Handy, George Gershwin borrows from Joplin, Igor Stravinsky and Miles Davis from Gershwin, Aaron Copland from Stravinsky and Davis, John Williams from Copland--and a thousand would-be composers around the globe now try to sound like John Williams. Pick your art form. That's always the way it is.

Lessig makes wonderful use here of the greatest of all free-culture icons: Steamboat Willie, the 1928 Walt Disney cartoon that introduced Mickey Mouse and launched an empire. He shows that large chunks of the short were borrowed from, and played off of, Buster Keaton's silent film Steamboat Bill, Jr., which was itself borrowed from a song, "Steamboat Bill." As Lessig puts it, Disney "ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn."

This culture of creative borrowing exists, of course, in the shadow of copyright law--mediated and regulated by the rules governing what may be taken from pre-existing works and the uses to which those works may be put. That's copyright's job: to give past and present authors a degree of control over the future uses of their work. It wraps up things that have already been created in a kind of protective shield, and it says to the authors of these works: You may stop people from doing certain things to your work, or you may condition their doing those things on the payment of whatever fee you deem reasonable.

Copyright does this for the benefit of the future. The point of protecting the current stock of intellectual goods is to give future creators a continuing incentive to create, assuring them there will be markets for their creations. At the same time, though, copyright makes the task of those future creators more difficult by making it harder for them to borrow/ steal/parody/build upon/transform/ adapt/modify/rip earlier works.