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money. Assume a group of concerned citizens donates all the money in the world to help you get your message out. Can you be sure your message will be heard then? No.You cannot. Television stations have a general policy of avoiding “controversial” ads. Ads sponsored by the government are deemed uncontroversial; ads disagreeing with the government are controversial. This selectivity might be thought inconsistent with the First Amendment, but the Supreme Court has held that stations have the right to choose what they run. Thus, the major channels of commercial media will refuse one side of a crucial debate the opportunity to present its case. And the courts will defend the rights of the stations to be this biased. 34 I’d be happy to defend the networks’ rights, as well—if we lived in a media market that was truly diverse. But concentration in the media throws that condition into doubt. If a handful of companies control access to the media, and that handful of companies gets to decide which political positions it will allow to be promoted on its channels, then in an obvious and important way, concentration matters. You might like the positions the handful of companies selects. But you should not like a world in which a mere few get to decide which issues the rest of us get to know about. Together There is something innocent and obvious about the claim of the copyright warriors that the government should “protect my property.” In the abstract, it is obviously true and, ordinarily, totally harmless. No sane sort who is not an anarchist could disagree. But when we see how dramatically this “property” has changed— when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different—the claim begins to seem 168 <strong>FREE</strong> <strong>CULTURE</strong>
less innocent and obvious. Given (1) the power of technology to supplement the law’s control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded “property” rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined. Not starkly. Or absolutely. My point is not that we should abolish copyright or go back to the eighteenth century. That would be a total mistake, disastrous for the most important creative enterprises within our culture today. But there is a space between zero and one, Internet culture notwithstanding. And these massive shifts in the effective power of copyright regulation, tied to increased concentration of the content industry and resting in the hands of technology that will increasingly enable control over the use of culture, should drive us to consider whether another adjustment is called for. Not an adjustment that increases copyright’s power. Not an adjustment that increases its term. Rather, an adjustment to restore the balance that has traditionally defined copyright’s regulation—a weakening of that regulation, to strengthen creativity. Copyright law has not been a rock of Gibraltar. It’s not a set of constant commitments that, for some mysterious reason, teenagers and geeks now flout. Instead, copyright power has grown dramatically in a short period of time, as the technologies of distribution and creation have changed and as lobbyists have pushed for more control by copyright holders. Changes in the past in response to changes in technology suggest that we may well need similar changes in the future. And these changes have to be reductions in the scope of copyright, in response to the extraordinary increase in control that technology and the market enable. For the single point that is lost in this war on pirates is a point that we see only after surveying the range of these changes. When you add together the effect of changing law, concentrated markets, and chang- “PROPERTY” 169
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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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eing]—but had to a large extent r
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esponse to this problem: used book
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infringing material, the district c
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tem to minimize the opportunity for
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macy in the behavior of the “pira
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“PROPERTY”
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ow range of exceptions—ideas rele
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ight. Prices of the classics were t
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strictions on the freedom of others
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ones Expire; so that should this Bi
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the monopoly power of publishers? P
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“Ruined” is a bit of an exagger
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it, this touch of cartoon helped ca
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So I asked Else why he didn’t jus
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CHAPTER EIGHT: Transformers In 1993
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We decided that it would be fair if
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etrospective of someone’s career
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its archives, musicians are able to
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CHAPTER NINE: Collectors In April 1
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portant to maintain in some histori
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tions from around the world and hit
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eal restriction was economics. The
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CHAPTER TEN: “Property” Jack Va
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Page 134 and 135: with a $150,000 fine. The fine is a
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Page 140 and 141: usiness against others. Its role is
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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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Page 172 and 173: would agree such a use is bad. Or a
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Page 178 and 179: tion companies producing television
Page 182 and 183: ing technology, together they produ
Page 184 and 185: commercial or not, transformative o
Page 186 and 187: PUZZLES
Page 188 and 189: The villagers don’t leave him alo
Page 190 and 191: But it is not quite stealing from T
Page 192 and 193: In April 2001, eMusic.com was purch
Page 194 and 195: There will be many consequences of
Page 196 and 197: e unclear. It never pays to do anyt
Page 198 and 199: you’ve got a little note from a l
Page 200 and 201: my.mp3.com service was to give user
Page 202 and 203: The point is not that businesses sh
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Page 206 and 207: Internet radio is thus to radio wha
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Page 212 and 213: My point is not the idiotic one: Ju
Page 214 and 215: use of CDs. The technology, in othe
Page 216 and 217: The RIAA then expanded this campaig
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Page 220 and 221: Yet policy makers are not willing t
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Page 224 and 225: gress has the power to extend its t
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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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