We live in a paradoxical time. Never before in modern times has the power of collaborative production been such a prominent feature of popular culture. Witness the popularity of the latest YouTube meme videos and of the self-styled online celebrities, for they herald the heightened inclusiveness of cultural creation that broadcast media failed to provide. Yet, copyright protection has in recent decades expanded far beyond its original intent, granting media conglomerates an incredible degree of control over the production of our shared culture and constantly threatening to reinvent the Internet in the image of its outdated predecessors. The struggle of reformists such as Lawrence Lessig is to reconcile this divide and create a more rational copyright system.
It has become quite intuitive for us to think of copyright as a property right like any others, but this is due in large part to the successful rhetoric of those whom Lessig terms “copyright warriors.” He argues that intellectual property has always been a different beast from other forms of properties and that this difference is reflected in the limitations placed upon it by the Constitution. As he puts it, “if creative property owners were given the same rights as all other property owners, that would effect a radical, and radically undesirable, change in our tradition.” Hence, the modern pro-copyright narrative is, in his opinion, a drastic departure from past precedents and, if allowed to continue unchecked, has terrible implications for the future of human culture.
No man is an island. One crucial point Lessig makes early in the book in support of his overarching argument is that creativity never takes place in isolation. A great example he used to illustrate this is Walt Disney, who took fables found in literary traditions such as the Grimm Brothers and adapted them into high-quality productions and global brands. Indeed, the transformative re-imagination of existing culture is an important part of all works of art, for it lends relevance and context to the exchange of ideas. It is therefore extraordinarily ironic that the Disney Company today is one of the most vocal opponents of the public domain, tirelessly lobbying governments to extend copyright terms to prevent century-old works from being made available for free modification. This is an extremely salient point because it exposes the inherent hypocrisy of the industry’s push for stronger copyright. It denies others the same opportunities to succeed that were accorded to the industry in its infancy. As Lessig writes, “A society that defends the ideals of free culture must preserve precisely the opportunity for new creativity to threaten the old.”
Lessig is very careful to stress the fact that he is not against the concept of intellectual property and that he believes in its usefulness in incentivizing authors. What he is critical of is the abandonment of the free culture that made modern achievements possible. The combination of retroactively-extended copyright terms and the fine-grained copyright enforcement capabilities enabled by technology have turned what was once “free culture” into what he calls “permission culture,” where no part of culture is free for use unless explicit permission is first obtained. “Technology means you can now do amazing things easily; but you couldn’t easily do them legally,” Lessig writes. Since it is often logistically impossible for creators to obtain the necessary permissions, copyright becomes a deterrent to innovation. Certainly, what Walt Disney did would be legally questionable today.
While Lessig lays out these basic tenets of the copyright reform movements with elucidating coherence and great conviction, what is missing from Free Culture is a stronger sense of urgency to act. Relying on surgical and precise arguments, he does not fancy himself a radical because he thinks that pro-copyright lobbyists who seek to dramatically redefine legal and social traditions are the real extremists. But in this case, a pinch of radical passion might have helped make his point clearer.
In his account of his appearance before the Supreme Court to argue for the repeal of the Copyright Term Extension Act, he candidly admits that he has a tendency to take too academic an approach in his arguments, placing great faith in his listeners to act on what they have been convinced to be logically true. Though some of the justices agreed with his argument—that the Constitution calls for copyrights “for limited Times” and if Congress can repeatedly vote to extend existing copyrights then it oversteps its enumerated powers by creating de facto unlimited copyright terms—they did not see the economic or social urgency to overturn past precedents to satisfy this technical point. Lessig failed to mention those detrimental effects because he saw them as a political point instead of a legal one.
Along that same vein, Lessig could have dedicated more time in the book to expand upon the various threats to First Amendment rights posed by the conflux of granular digital enforcement and lengthened copyright terms, instead of restricting his arguments to the societal harm resulting from reduced culture production. After all, even if the reader is convinced by the book that modern copyright is preventing the next Walt Disney from drawing upon a public domain traditionally rich with free culture, it is not clear that this societal loss is significant enough to motivate the reader to act or change his attitude. However, if we think of how cultural memes represent units of ideas used to express ourselves, giving copyright owners unrestrained control over their works can, with technology, become a threat to free speech. We can observe the start of this phenomenon on YouTube, which to be fair the book slightly predates. Expanding upon this idea could have lent greater urgency to Lessig’s argument.
Still, Lessig’s wealth of experience as a law professor and an advocate really shines through in the points that he does make. With his highly precise and well-qualified arguments, it is hard to imagine any reader would remain unconvinced that there are serious problems with the modern copyright regime and that these problems can be solved without threatening the reasonable right of authors to benefit from their works. At the time of writing, he was also remarkably prescient in his prediction that greater Internet penetration would lead to the rise of subscription-based services (i.e. Netflix) that could compete with piracy by being more readily accessible, a point he used to argue against passing reactionary legislations in the midst of technological transitions. Towards the end of the book, he makes a few relatively modest proposals for reforming copyright laws, such as formalizing the registration process, that serve as good starting points for further discussions. Despite the changes we have witnessed in the digital space since the book was published in 2004, Free Culture remains highly relevant today in providing a clear and concise argument for a social movement that is too often dismissed as freeloaders and criminals.