Public Enemy or Public Good? Frederick Pinto Reviews Free Culture
Pinto, Frederick, Harvard International Review
After developing a theoretical framework for analyzing the regulation of digital media in his first book and charting how he foresaw an over-regulation of ideas in his second, Stanford law professor Lawrence Lessig sets out to show how copyright law is being manipulated to jeopardize the freedom of culture in Free Culture.
The subtitle, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, leaves little suspense as to what the central thesis is. In his usual manner, brick by logical brick, Lessig builds the claim that copyright legislation in the United States is currently being manipulated to serve the interests of big media and entertainment corporations, who are depicted as technologically lagging and afraid that the digital revolution is shifting the structure of the copyright market away from their established entertainment empires. He unambiguously charges them as the main culprits in tightening the grip of copyright legislation--at a detriment to those who wish to build on the culture of the past. While such a point may seem trite in view of Washington's lobby-heavy brand of law-making, Free Culture's main strengths lie in its empirical richness and in Lessig's mastery at placing current legal developments in a wide historical context.
In the past, Lessig argues, Congress and the courts have traditionally responded to market-altering innovations by striking a balance between private interests and public benefit. And virtually every time, barring some caveats, new technologies were allowed to go forward and upset the status quo despite the legal challenges launched by the "dinosaurs" of the old technological regime, and at great benefit for both cultural innovators and the wider public. This was the case, for example, for what seem today to be technologies as benign as VCR, copying machines, and FM radio.
But Lessig's view is that the US Congress and the US courts have turned their back on this tradition and are complicit in a vast expansion of copyright law that is having terrible effects on the creativity and competitiveness of the new players in the knowledge economy. Practices that were once tolerated and that once kindled the United States' creative fires are today stifled by trigger-happy copyright lawyers, ever-expanding copyright regulations, and the prohibitive costs of finding the right copyright owners and clearing rights. The right to sample old material for criticism, parody, and reinterpretation, affectionately called "Walt Disney culture" by Lessig, is progressively disappearing under these burdens. Moreover, an alarming number of US citizens (counted in the tens of millions) are increasingly being labelled as "felons" and "criminals" for relatively minor copyright violations, and lawsuits are recklessly targeting any and all who, intentionally or not, come in the way of copyright holders. The stories used to illustrate this point include a college student who devised a more efficient way to access existing databases including copy-written works, and a twelve-year old girl guilty of peer-to-peer sharing--both sadly settling million dollar claims by big corporations for the entirety of their modest life savings.
Bridging back to Lessig's strength, some of the more interesting parts of the book deal with digital media, where the argument is that US copyright law has become particularly draconian. Partly because digital display is systematically considered a "copy," and partly because of the influence of Jack Valenti and the entertainment lobby, the scope and intensity of copyright protection in this respect has seen a dramatic explosion in the past two decades. Lessig rightly remarks that uses of material that were considered unproblematic in "real space" are today systematically considered breaches of copyright when online.
A constitutional lawyer by trade, Lessig also offers some interesting forays into democratic theory and places copyright issues in the context of a broader debate about civil liberties, public space, and creative freedom. …