Free Culture

For an industry consumed by the threat of piracy, Lawrence Lessig's voice is not always a welcome one. The Stanford law professor has been an ally of "cyber-liberty" groups like the Electronic Frontier Foundation that have argued that in their efforts to stop illegal digital downloads, studios and record labels are trampling on Americans' civil liberties.

For an industry consumed by the threat of piracy, Lawrence Lessig’s voice is not always a welcome one. The Stanford law professor has been a longtime ally of “cyber-liberty” groups like the Electronic Frontier Foundation that have argued that in their efforts to stop illegal digital downloads, studios and record labels are trampling on Americans’ civil liberties.

In his new book “Free Culture,” though, Lessig broadens this argument dramatically. In it, he claims that the industry’s attempted clampdown on peer-to-peer technology is part of a bigger effort to destroy a “free culture” in which much of our greatest art has played off of the artistic creations — or intellectual property — of others.

From Walt Disney’s “Steamboat Willie” to Japanese comics to the technology that started modern Hollywood, he demonstrates, less of our artistic achievement is original than we would like to believe.

In contrast to this “free culture,” though, Lessig worries that we’re entering a “permission culture,” in which all content is copyrighted indefinitely and anyone who seeks to build on other artists’ work must obtain their explicit permission.

Lessig isn’t arguing for an end to copyright, but he convincingly demonstrates that with Congress’ continued extensions of copyright terms, most recently to 95 years under the 1998 Sonny Bono Copyright Term Extension Act (which Lessig unsuccessfully argued against in the U.S. Supreme Court), the public domain on which much of free culture exists is disappearing.

Will “Steamboat Willie” ever become like “Romeo and Juliet” — a classic work that future artists will radically reinterpret to comment on their own culture? Given the power of Disney lobbyists and the MPAA, Lessig argues, it doesn’t even have a chance.

Lessig runs into some trouble, though, when he attempts to extend this argument about the need for a healthy public domain to the issue of P2P networks like Kazaa and Morpheus. He is right to note that plenty of legal content is trafficked via P2P file-sharing, but he fails to grapple with the fact that the overwhelming majority is copyrighted material, a fact that even the companies that run these networks admit.

Instead, Lessig devotes much of his argument to pillorying the power and tactics of the studios and labels. There are, of course, plenty of damning examples to choose from.

There’s Jesse Jordan, who as a freshman at Rensselaer Polytechnic Institute in Troy, N.Y., set up a search engine that unwittingly gave others at his campus access to the music on students’ computers; he had to hand over his life saving to stop an RIAA lawsuit. There’s John Else, an independent filmmaker who had a four-second shot in his film about Wagner’s Ring Cycle in which “The Simpsons” was playing in the background; Fox demanded $10,000 for use of the clip.

But Lessig also demonstrates a lack of understanding, or perhaps interest, in how the entertainment industry is handling the issue. He claims Hollywood itself is often derivative, pointing to the industry’s habit of making several films on the same topic at the same time, as if this is equivalent to copyright violation rather than simple competition or coincidence.

Throughout his defense of P2P, Lessig never once mentions iTunes or the myriad other legal music download services. Surely the existence of legal alternatives to purchase music cheaply online changes the game.

Nor does he address the movie industry’s efforts to get in front of the piracy problem with MovieLink, by selling content over P2P, or programs allowing people to sample copyrighted content in their own creations that movie and music companies are attempting, albeit slowly.

Much of Hollywood is still scared of digital technology, of course, and there are many arguments for why the entertainment industry would be wise to embrace P2P rather than fear it. But Lessig too often falls into the trap of damning Hollywood for its worst while ignoring its best.

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