My review of Lessig’s ‘Free Culture’

When future generations look back at this unsettled era in which we’re transitioning from an analog to a digital society, Larry Lessig‘s works will provide a treasure trove.

In his first book, Code and Other Laws of Cyberspace, dark forces were gathering, seeking ways to use code as a sort of privatized law to hem in the Internet and the potential of the digital revolution. We learned that the Net, far from impervious, could be tamed by rearranging its architecture. The premise seems obvious now, but only because Lessig’s 1999 ground-breaker connected the dots for us and set the scene for the struggles to follow.

His 2001 follow-up, The Future of Ideas, looked at the kinds of innovation that could flourish online but for the intrusion of copyright law. Lessig’s second outing deepened our understanding of the forces in conflict: entertainment companies, rigid business models, and obsequious policy-makers set against innovators, risk-taking businessmen, and Netizens who still took their online freedoms for granted. In a style that was uncommonly accessible for this academic-turned-storyteller, Lessig tackled the public commons, the end-to-end principle, spectrum regulation, and other classic and modern precepts in an effort to get us to look at intellectual property in a new light.

Now comes Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. The book, released late last week, might be considered the third of Lessig’s trilogy, a sort of Lord of the Rings for the intellectual property crowd. (The good professor lives up to the arguments he espouses by making the book available for free download on the Internet.)

Once again Lessig calls to our attention the increasing disconnect between law and digital culture. We see studio moguls, recording executives, and Beltway insiders all seeking to impose what Lessig calls an “extremist” agenda, by divorcing copyright law from its moorings in the Constitution as a balanced copyright bargain struck between creators and the public. Instead, we’re now seeing a new brand of intellectual property, where digital “property” rights are valued above all else and “piracy” is held up as the common enemy.

It is this framing of the issue, as one of property and law vs. piracy and theft, that itself is dishonest, as Lessig shows. Instead, the real battle is about control. As he writes: “The opposite of a free culture is a ‘permission culture’ — a culture in which creators get to create only with the permission of the powerful, or of creators from the past.”

Lessig, a law professor at Stanford, serves as our historical tour guide, aptly demonstrating that each of the major entertainment industries — Hollywood, cable television, radio, the music recording industry — was plenty guilty of piracy in its early years. Culture, it seems, has always wanted to borrow from what came before.

He also summons up moral outrage in pointing out the baseness of a legal system in which a teen faces a maximum fine of $1,000 if he shoplifts a CD from a record store — but faces statutory damages of $150,000 for downloading a single song without permission. He shows us the added financial burden the government placed upon Internet radio, which must pay recording artists for every Webcast of a song, even though terrestrial radio is exempt from such payments. The double standard has gone a long way toward smothering Internet radio in the cradle.

Near the end, Lessig takes us on an extended tour of Eldred v. Ashcroft, the landmark case involving the public commons that he argued before the Supreme Court and lost, 7-2, 14 months ago. He spends a bit too much time refining his arguments in an imaginary rehearing of the case rather than dishing behind-the-scenes details of what was taking place between the various parties. In the end, the High Court caved to special interests, granting Congress the right to extend already lengthy copyright terms by another 20 years, but in so doing it ignited a digital prairie fire that will doubtless grow hotter in intensity as digital technology becomes a pervasive part of our lives.

The giant of cyberlaw has a few prescriptions for this sad state of affairs. One is Creative Commons, the organization housed at Stanford that gives creators greater freedom over how to manage and share their digital handiworks. But a more fundamental solution lies in Lessig’s call for Congress to revisit the very basis of copyright to shorten copyright terms and, importantly, to rewire its fundamentals so that everything on the Internet does not automatically fall into the regulatory black hole governed by copyright law. Lessig suggests (as others have done) remixing the law so that copyright comes into play not when someone makes a copy of something for personal use but only when someone is engaged in the true piracy of profiteering.

His final suggestion is one of his best: Fire lots of lawyers.

Disclaimer: I’m writing a book with a similar theme, but it tackles the subject from a different angle — that of creative amateurs — with only passing discussion of copyright law. I interviewed Lessig for the book last year.

J.D. Lasica wrote a number of book reviews when he was entertainment section editor of the Sacramento Bee.

JD Lasica, founder of Inside Social Media, is also a fiction author and the co-founder of the cruise discovery engine Cruiseable. See his About page, contact JD or follow him on Twitter.