June 23, 2004

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.  By Lawrence Lessig.  New York: Penguin Press, 2004.  345pp (hardcover).  Index.  ISBN 1-59420-006-8. $24.95.

Reviewed by Tim Brooks

One of my favorite dance tunes from the early 1930s is a bouncy little number from a short lived musical called The Gang’s All Here.

I asked your father, and he said “okay,”

I asked your mother, and she said “hooray!”

By special permission of the copyright owners,

“I – love – you.”(1)

The song goes on to describe how the suitor has to get permission from just about everybody in order to woo his sweetheart.  I sometimes think that what the fight against the vast expansion of copyright needs right now is a sense of humor, or at least a bit of mockery of the sometimes ludicrous extremes to which that expansion has gone.  (Apparently they thought so in 1931, too.) Ridicule can be an effective tool.  It can humanize an opponent, and can demonstrate the sometimes laughable extremes to which it has gone.

It is hard for many to understand why copyright is so important.  You can see it their eyes, when you bring the subject up.  “Watch their eyes glaze over” is the term that comes to mind.  Yet anyone who invests the time to read this book will come away with a very different impression.  Free Culture makes the case that the battle over copyright is a key part of a much larger struggle for control of thoughts, ideas, and almost every other kind of creative expression.  We all know that great advances are built on the work of those who came before.  But the steady expansion of copyright, the author maintains, is an attempt to move America (and other countries) to a “permission culture,” where nothing can be built upon without permission, payment, and the opportunity for those who “own” the past to say NO—if they so choose.  It is a classic case of old interests (like the record industry) fighting new technologies (like the Internet).  It happened in the 1930s when the record industry bitterly fought radio, in the 1950s when the movie industry fought television, and in the 1980s when movies fought taping.  Ironically in all those cases the entrenched interests were too short-sighted to see that the “enemy” would actually benefit, not harm, them in the long run.

They eventually found this out because in none of those cases did Congress and the courts intervene to hobble the new technologies in order to protect the old.  They certainly did not expand copyright so that it could be used as a weapon to beat new technologies into submission.  But today, Lessig maintains, things are different.  With the growth of corporate influence over Congress, unparalleled since the late 19th century, when legislators were regularly “bought and sold” by huge industrial trusts, today’s giant entertainment conglomerates are able to get pretty much the laws they want.  And what they want, above all, is control, now.

Lessig is a public interest attorney who has been at the forefront of the battle to keep the Internet open and free.  He led the legal challenge to the 1998 Sonny Bono Copyright Term Extension Act, which lengthened copyright terms by twenty years.  He is rather Internet-centric, and most of his writings have been about the Internet, rather than about music and recordings.  However in Free Culture he broadens his perspective and covers many areas that will be of interest to ARSC members. For starters there is some useful history on the origins of copyright.  The first “copyright” act was the 1710 Statute of Anne, adopted by the British Parliament as a way of reining in the Crown’s ability to control the free flow of ideas by granting monopoly privileges to favored publishers.  This was part of a long battle (which included a Civil War) over freedom of expression; Henry VIII had even granted monopolies to print the Bible.  The Statute of Anne provided that new works would have a copyright term of fourteen years, renewable once if the author was still alive, and then would become part of the “public domain” (then a new concept).

The powerful London publishers’ trust (known as The Conger) didn’t like this, of course, and managed through legal maneuvering to subvert the law until 1774.  In that year a legal challenge involving a renegade publisher who had dared to publish a “public domain” work The Conger maintained was theirs in perpetuity reached the House of Lords, England’s equivalent of the U.S. Supreme Court.  In a stunning upset, the Lords voted two-to-one in favor of the public domain, effectively gutting the ability of The Conger (and its patron, the Crown) to control free expression through book monopolies.  It was a highly popular decision, and citizens celebrated in the streets.

When the U.S. Constitution was written a few years later it incorporated the idea of copyright for “limited times,” in order to “promote the progress of science and useful arts.”  The term was originally set at fourteen years, with one renewal, and applied narrowly to only maps, charts and books.  Lessig explains how this basic principle of copyright for a limited time and for limited purposes, with a vibrant public domain on the other end to encourage free expression and creativity, endured for 180 years.  Until the 1970s, when those who benefitted from the limited copyright monopoly began to find ways to expand and extend it, much as did The Conger of old England.

Numerous cases of copyright and patent abuses are described along the way, including Thomas Edison’s 1909 attempt to control the nascent film industry through a East Coast-based patent trust (the rebels fled to the West Coast, and founded Hollywood); RCA’s successful attempt to smother FM radio in the 1930s; and a bizarre 1945 case in which a farmer named Causby attempted to use a long-standing legal principal of property ownership “extending upwards indefinitely” to control the airspace over his farm, which would have shut down general aviation.  The book offers a useful adjunct by referring readers to a website that provides easy and up-to-date access to the sources it cites (http://free-culture.cc/notes).

All of these attempts failed in the end because Congress was not in the mood to change the basic law, but its willingness since the 1970s (plied by heavy lobbying and political contributions) to strengthen and expand copyright, most recently in the Digital Millennium Copyright Act and the Copyright Term Extension Act, have had a very different effect.  Napster is shut down, teenagers and grandmothers are sued within an inch of their lives for “infringement,” rules and technologies are put forward to hobble, constrain and control the very instruments of communication that the Internet offers, because they “might” be used for infringement.  Did you know that the Yahoo and Amazon auction sites will not accept CDRs (home recorded CDs) made by musicians trying to spread their work, because CDRs can be used for infringement of copyrighted works?  (eBay will accept them at present, but only with warranties from the seller.)  Or that when Napster told a district court it had developed a technology to block the transfer of 99.4% of infringing material, the court said that was not good enough; Napster had to push it “down to zero” or go out of business?  Or that the fine for stealing a physical CD from a store (in California at least) is $1,000, but the fine for downloading a single ten-song CD from the Internet is $1.5 million?

The Record Industry Association of America has used these towering fines as a blunt weapon against consumers.  Typically, RIAA lawyers send a threatening letter to a suspected downloader citing fines far beyond what the consumer could ever pay.  They then ask “how much money do you have?”, and generously settle for your life’s savings instead.  You can of course fight them, and might even win, but it will cost you thousands of dollars in legal fees, which you will not get back even if you win.  It is nothing short of extortion, and it is all perfectly legal under the DMCA, which Lessig characterizes as an “Orwellian law.”

Moreover by doing away with the need to register or mark copyrighted material, massive uncertainty has been introduced.  Even someone who wants to respect copyright can never be sure whether he’s infringing or not.  Too often, works don’t get written, or records reissued, because they might infringe, or the “owner” is unknown.

In chapter 13 the author addresses the Eldred Case, challenging the 1998 copyright term extension, which he argued and lost before the Supreme Court in 2003.  In a remarkable chapter Lessig clearly blames no one but himself for the loss.  An extraordinarily broad coalition of consumer groups, economists and experts (including ARSC) supported this challenge, although Lessig doesn’t mention most of them.  He was advised to demonstrate to the Court as forcefully as possible the damage that unlimited copyright has done and will do.  Instead he based his case narrowly on the right of Congress to pass such an extension, given the Constitution’s wording.  Even when asked directly by Justice Kennedy for evidence of harm, Lessig declined to provide any, saying that was not the issue.  The Court voted seven-to-two to uphold the law.  (The two dissenting opinions are quite interesting and insightful, but that’s another story.)

Lessig admits his tactic was a mistake, and indulges in quite a bit of self-flagellation over what went wrong.  The entire book, in fact, is permeated by a sort of melancholy regarding the powerful forces determined to turn America into a “permission culture,” and the difficulty of opposing them.  He’s not quite hopeless, however.  At the end, he offers five concrete proposals:

1. Restore formalities (registration, copyright mark, etc.) so that only what somebody really wants to protect will be protected, and that the massive uncertainty that is crushing usage will be alleviated.

2. Shorter terms.  Sonny Bono believed in perpetual copyright, with no public domain at all.  Some clever control-freaks have argued for a law specifying “forever minus one day,” so as to meet the Constitution’s “limited times” test (forever minus a day is technically limited, right?).  Lessig says we should keep terms short, like those for patents; keep them simple so “fair use” is clear; restore the renewal term (experience shows that most copyrights weren’t renewed); and keep copyright applicable to future works only, not retroactive to past works as has been done.

3. Broaden fair use in order to allow derivative works, which used to be permitted but are now largely outlawed.

4. “Liberate the Music” by allowing peer-to-peer networks, compulsory licenses for out-of-print works, and possibly an ASCAP-like licensing tax which would be distributed to creators to compensate them just as songwriters are compensated for radio play.

5. “Fire lots of lawyers.”  Lessig is a lawyer, but one who feels the law should be about fairness, not protecting the rich.

The Big Media (and big record companies) that pushed through much of the restrictive copyright legislation of recent decades are not faceless entities.  Two individuals who had much to do with this raid on America’s culture were Hilary Rosen, President of the RIAA, and Jack Valenti, President of the Motion Picture Association of America.  Both now are (or will soon be) retired.  Valenti in particular was an extremely effective lobbyist, genial, white-haired, and well connected (he was a staffer in the Lyndon Johnson administration).  Most of all he had a gift for communicating in simple, compelling terms.  “No matter the lengthy arguments made,” he told Congress, “no matter the charges and the counter-charges, no matter the tumult and the shouting, reasonable men and women will keep returning to the fundamental issue, the central theme that animates this entire debate: creative property owners must be accorded the same rights and protection resident in all other property owners in the nation” (p.117).

It’s so simple.  It’s just about protecting your property, that’s all.  Those who want to bring sanity back to copyright law need someone as eloquent, someone who can encapsulate issues so concisely, someone who can make them so relevant to the common person, as Valenti could.  It’s not about property, of course.  It’s about private property vs. public property.  What part of the public property can someone who wants to make a profit take, and keep forever?  It’s about what part of creativity should be considered property at all.  (Can your DNA be someone else’s property? The patent office thinks so.)

I don’t know if Lessig is that person.  The first half of Free Culture is pretty thick going at times, at least for the layman.  It’s lawyerly.  The second half is better, when he starts giving examples of the harms done (just as he now says he should have done before the Supreme Court), and possible solutions.  He tries mightily to appear reasonable, suggesting compromises, half-measures, trying to “understand” those he opposes and agree with them wherever possible.  Well and good, but at some point you have to stand up for what you believe is right.  “Forever minus a day” is not a compromise.  Nor can you compromise with those who have no intention of compromising—unless you’re Neville Chamberlain.

Free Culture is a more accessible book than the author’s last volume (The Future of Ideas, which I intended to review for ARSC, but which was so dense I frankly could not get through it).  Other recent books in this field have more intriguing titles, notably Information Feudalism: Who Owns the Knowledge Economy by Peter Drahos and John Braithwaite (New York: The New Press, 2003) and the especially well-reviewed Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity by Siva Vaidhyanathan (New York: New York University Press, 2001).  The latter is said to be particularly accessible.  As far as I know no one has yet written a book specifically about the damage done to the field of historic recordings by modern copyright laws.

The subject of expanding copyrights is one that ARSC members should be concerned about.  If you care at all about the goals of the organization I suggest you read Free Culture, or one of the other books mentioned.  They may not be the last word on the subject, but they are a good start.



(1) “By Special Permission of the Copyright Owners (I Love You),” words by Owen Murphy and Robert A. Simon, music by Lewis Gensler (1931).  Recorded by Nat Shilkret and the Victor Orchestra (Victor) and Hal Kemp and His Orchestra (Brunswick), among others.


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