Notes on Lawrence Lessig talk at ILaw, 7/2/03

Lessig begins with Richard Stallman's old distinction between "free speech" and "free beer": We don't assume that "Free markets" mean "no property," so why do we assume that "free culture" means no one gets paid? We can think of freedom instead as a kind of middle point on the spectrum between control and anarchy -- a zone of broad defined behaviors that you cannot be denied.

He goes on to tell the tale of Walt Disney's transmogrification of Buster Keaton's art into "Steamboat Willie," the first animated short with music that introduced Mickey Mouse to the world. Here, and throughout its long history, the Disney model is to take some existing cultural artifact -- a Grimm fairy tale or other folkloric inheritance -- and turn it into a family-safe cartoon. So Disney's business is built on public-domain bedrock. Disney's creativity was always "improving other people's work." Yet as we know the Disney company now leads the charge to extend copyright and confine the public domain.

[This, and an example from Japanese manga, was as far as Lessig took this idea, but of course it threads back through the entire history of human culture. Shakespeare and his contemporaries took for granted that their task was to grab some existing plot -- from the history books, from the Italian fables, from the classics, anywhere -- and try to make it sing in their own voices. The Greek playwrights worked and reworked the same stories and then actively compared their treatments in formal competitions. The fetishizing of originality didn't really kick in till the 19th century, as one strain of Romanticism put the artistic imagination on a lonesome pedestal, divorced the creative mind from its cultural context and invented a cult of genius that persists to this day. Such mythology notwithstanding, most geniuses will freely admit that they stand on the shoulders of forebears; creativity does not exist in a vacuum; there's little in culture that is not a reworking of some preexisting work.]

In recent decades the realm of copyright has vastly grown -- copyright's duration has been steadily extended and its scope expanded (from "publishing" to any kind of "copying"). Copyright became automatic. And now we have not simply human beings intepreting laws enforcing copyright, but code built into technology that interprets laws enforcing copyright. The DMCA, which prohibits individuals from tampering with copy-protection technology, is law protecting code protecting law. [The diagram of concentric circles on Lessig's slide illustrating this, with content trapped in the center trying to shoot its way out, looked like nothing so much as the old Starcastle video game that I wasted too many quarters on in my youth.]

Copyright -- which grants the creator of intellectual property a limited monopoly -- originally meant that you had a lot of tiny monopolies. Today, thanks to media concentration over the last few decades, those tiny monopolies have become "big blobs" -- a half dozen companies with a tightening hold on the stuff of our culture.

"Never in our history has there been a fewer number of actors who have exercised more control over the development of this culture than now. Technology, law, and the market have together set up a fundamentally different creative context from anything before. Free society becomes permission society. Free culture becomes an owned culture. And no one can do to the Disney Corp. what Walt Disney did to the Bros. Grimm or to Buster Keaton."

And so the "culture war" surrounding peer-to-peer filesharing, MP3 files and digital rights controls is "an insane unintended consequence of these changes." We've had 200 years of lobbyists pushing on one side of the equation. We're stuck in binary thinking -- "property vs piracy" -- as if we're choosing between either respecting property rights absolutely or giving up any chance of artist getting paid.

Ways of responding: Creative Commons. "Build a layer of reasonable copyright law on top of the existing extremism that defines what the law is. So we invert the extremism not by changing the law but through voluntary individual action." Make it easy for creators to give away some set of defined rights. A kind of "environmentalism for culture" that could begin to carve out some breathing room for the public domain.

"Fair use" is a bad way of understanding what we want. Fair use is a tiny sliver of freedoms, originally defined in a context where there was an extraordinary amount of unregulated use. We ought to be arguing for FREE USE. We have high-cost freedom, we need zero-cost freedom. Today, publishers move away from the close-to-the-line uses -- because they want to avoid lawsuits. Publishers defending themselves impose on creators a much narrower range of fair use than the law would recognize.

Lessig closes with a call to rediscover the history of "free culture" which defined our tradition for 180 years until this relatively recent transformation of our free culture into a permissions culture.