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with a $150,000 fine. The fine is an ex post punishment for violating an ex ante rule. It is imposed by the state. Norms are a different kind of constraint. They, too, punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state. There may be no law against spitting, but that doesn’t mean you won’t be punished if you spit on the ground while standing in line at a movie. The punishment might not be harsh, though depending upon the community, it could easily be more harsh than many of the punishments imposed by the state. The mark of the difference is not the severity of the rule, but the source of the enforcement. The market is a third type of constraint. Its constraint is effected through conditions: You can do X if you pay Y; you’ll be paid M if you do N. These constraints are obviously not independent of law or norms—it is property law that defines what must be bought if it is to be taken legally; it is norms that say what is appropriately sold. But given a set of norms, and a background of property and contract law, the market imposes a simultaneous constraint upon how an individual or group might behave. Finally, and for the moment, perhaps, most mysteriously, “architecture”—the physical world as one finds it—is a constraint on behavior. A fallen bridge might constrain your ability to get across a river. Railroad tracks might constrain the ability of a community to integrate its social life. As with the market, architecture does not effect its constraint through ex post punishments. Instead, also as with the market, architecture effects its constraint through simultaneous conditions. These conditions are imposed not by courts enforcing contracts, or by police punishing theft, but by nature, by “architecture.” If a 500-pound boulder blocks your way, it is the law of gravity that enforces this constraint. If a $500 airplane ticket stands between you and a flight to New York, it is the market that enforces this constraint. 122 <strong>FREE</strong> <strong>CULTURE</strong>
So the first point about these four modalities of regulation is obvious: They interact. Restrictions imposed by one might be reinforced by another. Or restrictions imposed by one might be undermined by another. The second point follows directly: If we want to understand the effective freedom that anyone has at a given moment to do any particular thing, we have to consider how these four modalities interact. Whether or not there are other constraints (there may well be; my claim is not about comprehensiveness), these four are among the most significant, and any regulator (whether controlling or freeing) must consider how these four in particular interact. So, for example, consider the “freedom” to drive a car at a high speed. That freedom is in part restricted by laws: speed limits that say how fast you can drive in particular places at particular times. It is in part restricted by architecture: speed bumps, for example, slow most rational drivers; governors in buses, as another example, set the maximum rate at which the driver can drive. The freedom is in part restricted by the market: Fuel efficiency drops as speed increases, thus the price of gasoline indirectly constrains speed. And finally, the norms of a community may or may not constrain the freedom to speed. Drive at 50 mph by a school in your own neighborhood and you’re likely to be punished by the neighbors. The same norm wouldn’t be as effective in a different town, or at night. The final point about this simple model should also be fairly clear: While these four modalities are analytically independent, law has a special role in affecting the three. 3 The law, in other words, sometimes operates to increase or decrease the constraint of a particular modality. Thus, the law might be used to increase taxes on gasoline, so as to increase the incentives to drive more slowly. The law might be used to mandate more speed bumps, so as to increase the difficulty of driving rapidly. The law might be used to fund ads that stigmatize reckless driving. Or the law might be used to require that other laws be more “PROPERTY” 123
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This PDF version of Free Culture is
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ALSO BY LAWRENCE LESSIG The Future
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FREE CULTURE HOW BIG MEDIA USES TEC
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To Eric Eldred—whose work first d
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“PROPERTY” 81 CHAPTER SIX: Foun
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PREFACE At the end of his review of
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tween liberal Olympia Snowe and con
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FREE CULTURE
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lowed to enter into an exclusive li
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On the day after Christmas, 1933, f
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The series of body blows that FM ra
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street corners telling stories that
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Internet seem remote to most. To th
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the lucky Wright brothers, the Inte
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“PIRACY”
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This efficiency does not respect th
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e seeing, as Richard Florida writes
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The boys worked from a music and so
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(1955), Mulan (1998), Sleeping Beau
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significantly. A doujinshi comic ca
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e richer if doujinshi artists were
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The hard question is therefore not
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Eastman, himself an amateur photogr
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Mickey, so, too, should these photo
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“Media literacy,” as Dave Yanof
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and this literacy in particular, is
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didn’t speak very well. But they
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in those elections. The cycle of th
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from the mainstream press. As Dave
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take the commercial apart and manip
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CHAPTER THREE: Catalogs In the fall
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users of the RPI network made avail
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won, he would have a piece of paper
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gave him, and the MPPC was serious
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this capacity to pirate. As South D
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dustry is a half-billion-dollar bus
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casters’ content, but more egregi
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CHAPTER FIVE: “Piracy” There is
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ate nation, but we will not allow a
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Thus, while I understand the pull o
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File sharers share different kinds
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Page 96 and 97: ow range of exceptions—ideas rele
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Page 106 and 107: “Ruined” is a bit of an exagger
Page 108 and 109: it, this touch of cartoon helped ca
Page 110 and 111: So I asked Else why he didn’t jus
Page 112 and 113: CHAPTER EIGHT: Transformers In 1993
Page 114 and 115: We decided that it would be fair if
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Page 120 and 121: CHAPTER NINE: Collectors In April 1
Page 122 and 123: portant to maintain in some histori
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Page 126 and 127: eal restriction was economics. The
Page 128 and 129: CHAPTER TEN: “Property” Jack Va
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Page 138 and 139: after the fall of Saddam, but this
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Page 146 and 147: granted only for works where they w
Page 148 and 149: Law: Scope The “scope” of a cop
Page 150 and 151: The act left other creators totally
Page 152 and 153: “Copies.” That certainly sounds
Page 154 and 155: These are uses that themselves invo
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Page 158 and 159: ness on distributing this content a
Page 160 and 161: Casablanca. Warner Brothers objecte
Page 162 and 163: According to my eBook Reader, I hav
Page 164 and 165: These are controls, not permissions
Page 166 and 167: up aibopet.com (and aibohack.com, b
Page 168 and 169: Felten and his team figured out the
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commercial or not, transformative o
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PUZZLES
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The villagers don’t leave him alo
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But it is not quite stealing from T
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In April 2001, eMusic.com was purch
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There will be many consequences of
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e unclear. It never pays to do anyt
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you’ve got a little note from a l
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my.mp3.com service was to give user
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The point is not that businesses sh
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the technology, but will likely be
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Internet radio is thus to radio wha
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13. retail album title; 14. recordi
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RIAA launches lawsuits against not
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My point is not the idiotic one: Ju
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use of CDs. The technology, in othe
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The RIAA then expanded this campaig
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BALANCES
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Yet policy makers are not willing t
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accessible to the twentieth century
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gress has the power to extend its t
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ights are about to expire, there is
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ing term, then there would be no
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work. In 1930, 10,047 books were pu
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any continuing commercial value. Th
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In this context, there is no need f
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freedom to fill the gaps. As one re
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nored this pressure (something that
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Software Foundation (home of the GN
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their view of how this part of Amer
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case, under the government’s argu
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for the chance to see the proceedin
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chief justice: Well, but you want m
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Justice Ginsburg simply ignored the
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power. And they joined an opinion t
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the decision was praised, it was pr
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CHAPTER FOURTEEN: Eldred II The day
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moved in 1976, when Congress follow
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a world without formalities. Comple
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ond, they argued that the proposal
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domain tied to the Internet could s
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These prices are not high because t
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about the sanctity of property. 5 I
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comes our common sense. And the cha
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WIPO. But in my view, there couldn
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First, they are just flat wrong. As
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as Lessig would have it, then of co
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petition and increased diversity. S
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AFTERWORD
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US, NOW Common sense is with the co
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Well, if we think in terms of the m
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The world of free software had been
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of scientific work submit that work
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of content (“content conducers,
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with Creative Commons freedoms. The
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These are all formalities associate
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tially lower the burden of this for
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2. Shorter Terms The term of copyri
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3. Free Use Vs. Fair Use As I obser
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tain statutory conditions. Either w
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tion should not be, how should the
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Alternatively, the law could create
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uses. A system that simply charges
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should be on how to make sure the a
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arely test their power, or the powe
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Notes Toward a Cultural Geography o
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5. Coe, 58. 6. For illustrative cas
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7. To Amend and Consolidate the Act
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(September 2002), reporting that 28
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CHAPTER SIX: FOUNDERS 1. Jacob Tons
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York: Basic Books, 1999): 90-95; La
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we should repeal it. It is instead
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35. Siva Vaidhyanathan captures a s
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11. For example, in July 2002, Repr
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Constitution. I invite all of you t
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kets pose a threat to the entire sy
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#79. For other proposals, see Lawre
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Yonezawa. I am thankful as well as
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Barlow, Joel, 8 Barnes & Noble, 147
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copyright law (cont.) copies as cor
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Fairbank, Robert, 105 fair use, 141
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Jefferson, Thomas, 84, 120, 284 Joh
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peer-to-peer file sharing (cont.) f
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Secure Digital Music Initiative (SD
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ABOUT THE AUTHOR LAWRENCE LESSIG (h
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