Creativity In Chains


How Big Media Uses Technology

and the Law to Lock Down Culture

and Control Creativity

By Lawrence Lessig

The Penguin Press -- 345pp -- $24.95

Lawrence Lessig is a gloomy soul. And the little black clouds floating over the head of this lawyer, a Stanford Law School professor and one of America's best-known commentators on intellectual-property issues, show little sign of disappearing any time soon. In Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, he insists that our very ability to make cultural products is newly endangered. Although this book is far from a breezy read, it offers an accessible and compelling case for the need for balance: The power that copyright holders have over their works must not limit the ability of others to produce related new creations.

The author's main concern is that the fear of the Internet on the part of big media companies and other copyright holders is leading them to push for restrictive regulation. Instead of enabling more people to take part in creativity, as is the Web's promise, the Net is prompting limits on cultural invention.

How can that be? The Internet and digital technology, he says, break down the longstanding divide between commercial culture (showing a film in a movie theater, releasing a new CD), which is regulated by law, and noncommercial culture (lending a book or CD to a friend), which mostly isn't. Copyright law encourages writers and musicians to publish, providing them with some control over their works so they can benefit, whether through money or fame. But technology -- including file-sharing software, CD recorders, and e-mail -- undercuts that control, enabling others to make many copies of original works and share them. In some cases, such behavior has eaten into the livelihood of professional artists and media companies.

New technology upends the status quo in another way: It allows someone who is an amateur guitar player or deejay to turn professional without help from publishing houses, record labels, or movie studios. The plunging prices of digital gear, from cameras to music-mixing software, along with the Net's culture of cut, paste, link, and post, are making possible new methods of generating and distributing works. And often the amateur-turned-professional is using other artists' work -- a guitar riff, a line of verse -- in his own productions.

Big media is responding by trying to place limits on users of this threatening technology. Companies holding copyrights have sued users, startups, innovators, and hobbyists. They have gotten statutes passed outlawing the breaking of copy-protection technologies, no matter what reason. Lessig cites the following extreme case: In 2001, Princeton University computer-science professor Edward W. Felten and seven others announced plans to publish an academic paper that outlined security flaws in copy-protection technology designed for digital music files. The recording industry threatened to sue under a statute that made it a felony to create technology that allows people to crack copy-protection systems. The researchers then turned to the courts for a ruling on their First Amendment right to express such opinions -- and the industry backed off.

Lessig asserts that what's good for big media may not necessarily be good for U.S. society. Increasingly, Americans will need to ask for permission to do things that they took for granted in the past -- including copying a clip from a movie for use in a school project or tinkering with interactive software. For instance, Adobe Systems Inc.'s (ADBE ) eBook Reader software, which allows people to buy and read books on their computer, imposes limitations that don't exist with a physical book. User contracts and code embedded in the software can prevent you from lending the book, printing pages, or even giving the volume away to someone else.

The owners may say rampant piracy requires such changes -- but piracy, Lessig notes, is nothing new. In the 1920s, radio stations played songs without compensating the artists. A few decades later, nascent cable companies retransmitted TV broadcasts without paying the networks. And in the 1970s, consumers started using VCRs to tape TV shows free of charge. All these battles were resolved by licensing schemes, not more control.

It's understandable that copyright holders would try to protect themselves, no matter what the impact. Most people believe that if a person creates something, he should have complete control over it and gain all the benefits. Lessig, though, begs to differ, saying that this way of framing the debate -- as being just between those who favor property rights on one side and those who choose piracy on the other -- excludes the middle ground. Contracts like Adobe's, he says, hand the owners of intellectual property excessive power, including rights they have never had in the past.

Copyright, Lessig reminds us, was established to benefit society. The idea was that, without protection, a creator wouldn't publish and society would lose out. But unlike, say, the proprietor of a house or a farm, the owner of artistic work isn't given complete control over that work. Copyright, by design, has a limited scope and a limited time, after which works fall into the public domain.

Lessig offers various remedies for this worsening predicament, but as a whole, they are less compelling than his analysis of the problems. "Common sense must revolt," he says. "It must act to free culture." In general, this means turning back the clock on legal restrictions and learning to live with the new technologies. For instance, to ensure that works enter the public domain more quickly, he favors shortening copyright terms and requiring that owners renew their copyrights after a certain period of time. But how likely is this, in reality? Last year, Lessig argued -- and lost -- a Supreme Court case that contested a law backed by Walt Disney Co. (DIS ) extending copyright terms to the life of the author plus 70 years. He favors an average term of 32 years -- substantially shorter than the average 95-year term corporations are allowed today under most circumstances.

The author furthermore wants to reinstate some early copyright requirements that were dropped because they came to be perceived as onerous. He thinks that everyone who has a copyright should have to register the work and mark it as copyrighted. The goal is to make things easier for someone who, say, wants to create a digital library or produce a film that uses clips from other movies: They'll know what works are copyrighted and what person to get in touch with for permission to use them. He also proposes narrowing the original creator's rights over works that derive from an original, such as a movie based on a book. And he explores ways to redefine the basics of intellectual property -- applauding how some rights holders, from the BBC to Brazilian pop musician Gilberto Gil, are offering more flexible use of their copyrighted films, music, and written words.

When it comes to file-sharing and the control of digital music, Lessig spells out a key personal tenet: Government shouldn't attempt to restrict the use of technology that's in the midst of rapid change. He asserts that over time, more and more people will opt to pay for music subscription services. Until the market gets to the point where it's more appealing to rent than own, Lessig endorses compulsory licensing: A file-sharing service would track downloads and charge a fee at the end of the month.

Such ideas deserve broad consideration. The gloom that Lessig offers can be dispelled only if the public gets involved in shaping the balance between the freedoms allowed and the limits placed on digital reproduction.

By Heather Green

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