Benjamin J. Robertson responds to Francis Raven's review of Lessig's Free Culture. Writing against Raven, he outlines the ways in which Lessig's work is crucial for our current cultural moment.
I will allow my title to be misleading. I do not intend to respond directly to Francis Raven's review beyond a few remarks at the outset of this note. At the risk of being blunt, and in the interests of avoiding beating around the bush: Francis Raven entirely misses the point of Lawrence Lessig's Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. He does not in any way address what Lessig argues is the book's point, what I understand to be perhaps the most significant issue facing American and global culture in the early twenty-first century: the manner in which the Internet specifically and digital technologies generally have affected the ability of individuals to access, create, and distribute culture and the legislative response to these changes in the form of stricter intellectual property law.
Raven's lack of engagement with Lessig's most important ideas is disturbing. He correctly identifies Lessig's desire to reduce the length of copyright instantiated in the Sonny Bono Copyright Term Extension Act of 1998: the life of the author plus seventy years for individuals or ninety-five years for corporations. Lessig claims that the dramatic increase in length of copyright over the last few decades has led to a smaller, less robust public domain, as Raven also notes. However, Raven does not address why this matter has taken on increasing urgency for Lessig, namely that recent developments in technology - including digital video and audio recording equipment; image, sound, and video editing software; and especially the distribution mechanisms that the Internet enables - potentially mark a watershed moment for human creativity. This moment in Lessig's argument may never come to pass, however, as intellectual property law (such as the Digital Millennium Copyright Act) and technological initiatives (Digital Rights Management, trusted computing, forms of malware such as Sony's rootkit, etc.) have been and continue to be developed and deployed. The result is that intellectual property monopolies are protected for private interests at the expense of the public domain; in short, most of our society is unable (in either a legal or literal sense) to manipulate, build upon, critique, or in any way interact with any culture produced since the early 1920s. Texts such as DJ Danger Mouse's The Grey Album and The Kleptones' A Night at the Hip-Hopera should mark a new era in music production and distribution.Danger Mouse's The Grey Album is a "mashup" of The Beatles' White Album and Jay-Z's The Black Album. Danger Mouse did not obtain permission to sample from his sources, assuming (almost certainly correctly) that permission would be denied. Upon release in early 2004 Danger Mouse and websites offering the album for download were served with cease-and-desist letters from EMI, the record label that owns the rights to the White Album. Similarly, The Kleptones' A Night at the Hip-Hopera - an album that offers an historical look at hip-hop culture as well as a critique of copyright law and US politics by mashing together rap and R&B songs with Queen - was also the subject of legal action when it was released in late 2004. Lessig's argument regarding these two albums would be that they in no way detract from their source material. If anything they enhance the appeal of that material to an audience that may otherwise never be exposed to it. Moreover, the artists behind these texts have expanded our culture by interacting with it in a manner facilitated by digital technologies, including the Internet. The new media literacies behind these creations are in danger of disappearing if Lessig's fears come to pass. I will have more to say on this subject below. I will not link to sites that offer The Grey Album or A Night at the Hip-Hopera for download as they are, according to the law, illegal. However, a quick Google search will provide those interested with links to these materials. They should introduce a new generation of listeners to bands such as The Beatles and Queen. They should be acknowledged as building upon culture and producing more of it to be built upon. Instead they have been criminalized, made the subject of cease-and-desist letters and legal proceedings. What is important to remember in this context is not simply that we need to address the inequities of contemporary copyright law, but that we must educate ourselves of the cultural implications of new technologies so as to keep those technologies free for public use and the public good.
Raven does not recognize this aspect of Lessig's argument, one that Lessig takes pain to make clear in the preface to Free Culture. I will return to this issue below in order to make clear why Lessig's arguments are important in the early twenty-first century. First, however, I wish to point out an inaccuracy in Raven's general discussion of copyright law, one that masks a point that is crucial for the discussion at hand. I wish to expose this inaccuracy not so much to criticize Raven, however, as to demonstrate how a lax attitude towards the specifics of copyright law has the potential to confuse the general public about how copyright works and thereby obfuscate the implications of the current debates over intellectual property.
Raven writes of the "before" and "after" of copyright:
To avoid confusion, I will call works that have the potential to be copyrighted "intellectual objects" and use the term "copyrighted works" for such objects after they are copyrighted. Intellectual objects, however, are not objects in the ordinary sense of the word. A book is not an intellectual object; a novel (in its broadest sense) is. An individual book is an instantiation of the novel which is the intellectual object, a conceptual rather than a physical entity.
To state that Raven's claims here are misleading would be itself misleading. To be clear: there is no such thing as "before" and "after" copyright. Raven's term, "copyrightable goods," is inexact to the point of being wholly inaccurate and is a false heuristic that in no way mirrors the reality of copyright law. US Code Title 17, 102 reads as follows:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
In other words, once something (a poem, a novel, a play, a song, a film, a photograph, a building) is expressed in some tangible medium that makes possible reproduction (whether a literal reproduction or a reproduction through another representative medium, such as a photograph of a copyrighted work of art) that something is copyrighted. (Unlike the processes for obtaining patents and registering trademarks, there is no paperwork to file for copyright; once it exists in a "copyrightable" form, it is copyrighted.) Take the example of a poem. When a poet is merely considering a poem, turning it over in her head, there is nothing about the poem that is copyrighted or copyrightable. It has not yet been expressed and cannot therefore be copied. Without the possibility of copying there can be no copyright (again, understanding that by "copying" the law does not simply refer to literal reproduction, but also representation). Once the poem is written down in a notebook, saved to a hard drive, or scribbled on the back of a napkin while eating lunch, the poem is copyrighted. To speak of before and after is to speak of a false dichotomy. "Before" can only refer to a moment prior to the existence of a copyrightable thing, as in "before there is anything to copyright." The idea of the poem in the poet's head is not copyrightable; even the complete poem memorized in the poet's head is not copyrightable. Likewise, "after" can only refer to the after-coming-into-being of the copyrightable thing, a point at which it is always already copyrighted.
Thus, by stating that books (physical objects) are not "intellectual objects," Raven misses the point of Title 17. A "novel" that is instantiated in a "book" is only an intellectual object (i.e. an object that can be copyrighted) in its capacity as the very instantiation in question. In short: no instantiation = no copyright - possible, potential, real, actual, or otherwise. Prior to the instantiation not only is there no copyright, or potential for copyright, but there is nothing (or no thing) to copyright in the first place. If by "intellectual object" Raven means "idea" (e.g. the idea of a poem in the poet's head prior to its inscription in a tangible medium), fine. However, the law makes clear that ideas cannot be copyrighted, only their expression. This rule applies both before and after inscription. Prior to inscription (a term I am using in the broadest possible sense to mean the capturing of an idea in a medium of expression, as per the list Title 17 provides), the idea is only an idea which, again, cannot be copyrighted. After inscription, the idea is still without copyright protection as only the instantiation is copyrighted. Thus the law protects copyrighted goods from being copied (a physical process) in another tangible medium (whether as a photocopy or as an exact reproduction of, for example, a book). The materiality of the object is a necessary, if not instrumental, component of the copyright. While Raven is correct to assert that individual books are not what are copyrighted per se, those very individual expressions, in their totality, are what copyright requires for it to function in accordance with Title 17.
If Raven's statements were merely misleading or even inaccurate, I would not be as forceful in my rejection of them. However, in their inaccuracy they create (or rather maintain) a myth about copyright, namely that it involves a process other than the creative act. Although patents require a long and expensive application process, which makes them all but unattainable for private citizens, copyright exists from the moment the work in question is fixed in a tangible medium. There are, to be sure, procedures for registering copyright with the Library of Congress, but such registration is only a means by which to officially record the copyright and is in no way a creation of copyright itself. Lessig's desire for a free culture can only be achieved if the public understands what their rights are, specifically that they have the same right to access culture as do large corporations with vast legal and financial resources. Most importantly, the myth of the copyright process creates in people the sense that intellectual property is not something that will ever concern them directly. If it requires lawyers and forms with obscure numerical titles (think W-2 or 1040-A), people will shy away. This lack of engagement with issues of intellectual property is potentially devastating for not only democracy, as I discuss below, but also for the fight against AIDS (as US corporations take legal action against developing nations in need of cheap, generic medicines), the rights of indigenous populations (whose ideas are patented, copyrighted, and trademarked by large corporations, despite these ideas' centuries-old existence), and the creation of artistic works (sampling fees are already astronomical and often prevent the creation of certain types of music, or force music like that made by Danger Mouse and The Kleptones to always already be criminalized). I am well aware that these examples are far more complex than my list implies. For a full discussion of these and other issues see Kembrew McLeod's Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity (New York and London: Doubleday, 2005). My point is simply that if the public understands copyright, and by extension intellectual property generally, to be outside of its concern, the problems these issues represent will continue to be problems. What all of these problems have in common - with each other as well as the threat to democracy I will discuss next - is that they entrench the status quo as the only possible situation. If those with power control culture - what it is, how we are allowed or able to interact with it, how it is made - they will effectively control the direction society can take. If citizens are not aware of this threat, because they do not understand themselves as the creators and purveyors of culture, the status quo will become further entrenched with little or no recourse.
With that understood, I will now turn my attention away from copyright law generallyThere are numerous texts to which the interested reader can turn for detailed description and analysis of the history and current implications of intellectual property law. For general discussions of intellectual property law from the "copyleft" movement one could turn to McLeod's Freedom of Expression (cited in note 2), Siva Vaidhyanathan's Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (New York: New York University Press, 2001) and The Anarchist in the Library: How the Clash Between Freedom and Control is Hacking the Real World and Crashing the System (New York: Basic, 2004), or Michael Perelman's Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity (New York: Palgrave, 2002). Jessica Litman's Digital Copyright (Amherst, NY: Prometheus, 2001) offers coverage of the issues surrounding intellectual property in the age of digital reproduction, while J.D. Lasica's Darknet: Hollywood's War Against the Digital Generation (Hoboken: John Wiley and Sons, 2005) is comprised of the results of extensive investigative reporting on those who are affected by overly restrictive copyright laws and what some are doing to overcome them (see also Lasica's project website, darknet.com) Lyman Ray Patterson's landmark 1968 study Copyright in Historical Perspective (Nashville: Vanderbilt UP, 1968) not only marks the beginning of the current trend in intellectual property law scholarship that Lessig inherits, but will provide the interested reader with the background for the contemporary debates in the field by detailing the evolution of copyright since the fifteenth century. Of course, one might also turn to Lessig's earlier book The Future of Ideas (cited above) for expert descriptions and analysis of what, to this writer, could be the most important issue of our time. and towards Lessig's primary focus in Free Culture: the debate over intellectual property in the specific context of the age of technological innovation we inhabit. As the world and its cultures become more and more informational, the ability to access and manipulate information will take on greater significance. However, if information, and by extension culture, is locked up by copyright law and technology, we will lose not only our past, but our future. In short, the idea of democracy is at risk. That Raven fails to even suggest this issue is to my mind a disservice not only to Lessig but to the reader of his review as well. His discussion of Lessig's proposals for the future of intellectual property laws is an adequate summary of that portion of Free Culture; however, without context for Lessig's proposals the reader of Raven's review will be left wondering what the big deal is.
I therefore need to make clear what is at stake in Free Culture, or, rather, I need to allow Lessig to make that clear for himself. The concept of "free culture" is, as one might guess, at the heart of Lessig's argument, which spans some 300+ pages but is boiled down in his preface to a succinct and cogent two paragraphs. Responding to a critic of his first book, Code and other Laws of Cyberspace - who claims that Lessig's statements about the effects of the internet overreach in their claims (as we can always escape the Internet by turning off our modems) - Lessig writes:
Unlike Code, the argument here is not about the Internet itself. It is instead about the consequence of the Internet to a part of our tradition that is much more fundamental, and, hard as this is for a geek-wanna-be to admit, much more important.
That tradition is the way our culture gets made. As I explain in what follows, we come from a tradition of "free culture" - not "free" as in "free beer" (to borrow a phrase from the founder of the free software movement), but "free" as in "free speech," "free markets," "free trade," "free enterprise," "free will," and "free elections." A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a "permission culture" - a culture in which creators only get to create with the permission of the powerful, or of creators of the past. (xiv, original emphasis)
Lessig here, in approximately 200 words and less than two pages into his book, tells us everything we need to know about his project on a conceptual level. Over the course of the next several hundred pages he will elaborate, illustrate, and refine his claims, but the heart of the matter is right here: a democracy depends on the free exchange of ideas - in short, the creation of culture out of the remnants of the past. If the past is allowed to limit innovation, if we have to ask permission every time we want to create art or critique politicians, then we will no longer have a democracy. It is the potential for such a fate that concerns Lessig.
Before I move on to an explanation of this fate, and thereby an analysis of the implications of Lessig's arguments, I would like to turn briefly to the inspiration for Lessig's title: Richard Stallman, the "founder of the free software movement." In Free Software, Free Society, Stallman explains the need for open-source, or "free," software, and uses a very specific definition of the term "free," one to which Lessig directly refers in Free Culture: "`Free software' is a matter of liberty, not price. To understand this concept, you should think of `free' as in `free speech,' not as in `free beer'" (Stallman 41). The question of "free" is a question of access; if access to a resource is granted neutrally, that resource is free regardless of its cost in dollars and cents. Use of the New York State Thruway, for example, is "free" in Lessig's and Stallman's understanding of the term because the price for its use is the same for anyone who uses it whether a driver is white or black, male or female, old or young.
Stallman is specifically concerned with the lack of access inherent in the concept of closed-source software, just as lack of access in a permission culture is what concerns Lessig. In the context of software, Stallman's worry is that a denial of access to source code will create substandard products and a potential for abuse. For example, as any user of Windows knows (or should know), Microsoft's wildly successful operating system is "closed source," or "proprietary." Otherwise put, Windows users do not have access to the source code which controls how the software functions, behaves, and interacts with other pieces of software (whether legitimate or malicious). Therefore, users cannot always (or perhaps more appropriately ever) be aware of what that software is doing. While this lack of access will most likely not bother many casual users, Stallman finds such limitations problematic: "Proprietary software means, fundamentally, that you don't control what it does; you can't study the source code, or change it" (115). Far from being the lamentation of a tech geek, Stallman is here decrying what we used to expect as our rights as consumers and citizens in a free society.
As a consumer I expect the right to dispose of my legally acquired property in any manner I see fit. Stallman puts the debate in terms we can easily understand: "You deserve to be able to cooperate openly and freely with other people who use software. You deserve to learn how the software works, and to teach your students with it. You deserve to be able to hire your favorite programmer to fix it when it breaks" (49). Microsoft Windows is among the most successful operating systems in history. However, computer science students cannot look at it to see how it works; they cannot learn from it. (Imagine an MFA student who was not allowed to study extant paintings by acknowledged masters when learning how to paint.) Culture is thus closed off in educational terms. It is likewise closed off to choice, specifically the choice of how we maintain our property. If Windows breaks, we have no choice of whom to call: it's Bill Gates or no one. If I want to take apart my legally purchased car and use its parts in another car of my own creation, I should be allowed to do so. Alternatively, if I wish to reverse engineer my car and make improvements upon it, I should be allowed to do so. Finally, if I am incapable of making improvements to my car myself, or if I merely need maintenance for my car, I should be allowed to take it to the person I feel is most qualified to accomplish the task at hand. In the world of proprietary code, however, none of these scenarios is possible. If Windows malfunctions, users cannot fix it except in certain limited manners proscribed by Microsoft. Moreover, users cannot make any improvements to Windows. If they do there is the very real possibility they will be found out as Windows is in the habit of communicating with Microsoft as to its condition (when, for example, it updates its security settings).An example of why such improvements - particularly collaborative improvements, are crucial to software's success - will prove instructive here. Mozilla Firefox is an Internet browser directed by the Mozilla Foundation and built upon open-source software. Because anyone with an interest can see the source code for Firefox, there are potentially millions of people who will be able to find and report security flaws in the code, flaws which can leave an unpatched computer vulnerable to malicious code in the form of exploit attacks, viruses, spyware, or other threats. By comparison, Microsoft's Internet Explorer is closed-code. Only Windows employees are allowed to see the code that makes the browser work and as such only a limited number of individuals are able to make improvements to the code. While one might think that the open-source Firefox is more vulnerable to attack than Explorer (because hackers have access to the code), this study by Brian Livingston on the website TechRepublic demonstrates the speed with which Firefox is able to respond to perceived threats as opposed to the glacial pace that Microsoft addresses security flaws in a piece of software that is irrevocably yoked to one of the most common operating systems in the world. "IE suffered from unpatched security holes for 359 days in 2004. According to Scanit, there were only 7 days out of 366 in 2004 during which IE had no unpatched security holes. This means IE had no official patch available against well-publicized vulnerabilities for 98% of the year." Compare Explorer's security efforts with those of Firefox: "Mozilla and Firefox patched all vulnerabilities before hacker code circulated. Scanit found that the Mozilla family of browsers, which share the same code base, went only 26 days in 2004 during which a Windows user was using a browser with a known security hole. Another 30 days involved a weakness that was only in the Mac OS version. Scanit reports that each vulnerability was patched before exploits were running on the Web. This resulted in zero days when a Mozilla or Firefox user could have been infected." While it would be overreaching perhaps to suggest that Firefox being open-source is the only reason for its success on the security front, the article comes close to stating exactly that: "Microsoft employs some of the best software developers in the world. The company enjoys a cash reserve of $35 billion and is highly profitable. Yet a tiny company that builds open-source browser software is making the Redmond giant look foolish and incompetent in securing its products."
While the rights of car owners to tinker with their cars has not to my knowledge been taken away by law or technology, the rights of owners of Sony's Play Station Portable (PSP) have been under threat since the device was released in 2004. Within a year of the PSP's release, hackers (or, given that term's stigma in the popular press, tinkerers), quickly found other uses for the device than those Sony intended. Added to the PSP were capabilities for internet chatting, accepting transfer of digital video from digital video recording devices, reading electronic books, and running a version of the LINUX operating system.There are several websites devoted to PSP modification including psp-hacks.com and psphacks.net. Sony, however, has in each update of the product's firmware rendered the use of such "homebrew" code impossible. For example, at the release of firmware version 2.5 a Sony spokesperson offered the following statement to an online technology news service:
"The demand and excitement for PSP has been very strong, and in turn consumers have already found many uses for PSP," a spokesman for Sony's gaming division told vnunet.com.
"However, PSP contains robust technology and was designed to run specific applications via the Universal Media Disc or memory card.
"Consumers should be aware that any hacking or home-brew applications may cause damage to the PSP unit and may void the warranty."
This statement has since been "translated" by former Electronic Frontier FoundationThe Electronic Frontier Foundation describes itself as "a group of passionate people - lawyers, technologists, volunteers, and visionaries - working in the trenches, battling to protect your rights and the rights of web surfers everywhere. The dedicated people of EFF challenge legislation that threatens to put a price on what is invaluable; to control what must remain boundless." See their mission statement here. consultant Cory Doctorow: "Sony sold you this device, but you still don't own it. It's ours, and you're not allowed to use it in ways that displease us." Doctorow's glibness notwithstanding, his analysis is dead on. Despite the fact that a consumer may legally purchase and therefore legally own a Sony PSP, that same consumer is only allowed to use it in a manner of which Sony approves. While Sony no doubt maintains that this restriction is in the interests of business (so that individuals cannot create games that might compete with those produced by multimillion dollar corporations), this argument does not hold up. It is anti-competitive in a capitalist sense, and potentially anti-American in its potential to run afoul of the Constitution.It should be noted that Sony's business practices have thus far failed. To date, every version of PSP firmware has been cracked. I expect that the day Sony does manage to produce an invulnerable wrapping for its devices will likewise be the day that they lose a not insignificant percentage of their business.
Our right to interact with our property is guaranteed by the Fifth Amendment, which states that no one shall "be deprived of life, liberty, or property, without due process of law." Taken in its broadest sense, the Fifth Amendment guarantees not only our right to own property, but also, presumably, our right to do with it as we please (with the understanding that we don't use it to harm others, much in the sense that the freedom of speech does not allow slander or give anyone license to yell "Fire!" in a crowded theater). Of course, the response from Sony and Microsoft is, presumably, that the person who purchases software does not own that software, but rather licenses its use from the software's producer. Windows is only property for Microsoft, and no amount of "purchasing" will change that. Far from an ownership society, or a free society in Stallman's cum Lessig's terms, ours is becoming more and more a permission society in which we must ask to interact with our property and, increasingly, our culture.
Nevertheless, this inability to tinkerFor additional information and analysis of these issues, see Freedom to Tinker, a weblog written by intellectual property lawyer Edward W. Felten and J. Alex Halderman. with Windows or the PSP is inconsequential when compared to the ramifications closed code could have for social life beyond the technological. Stallman spells out the true potential harm such software could cause. He writes, "If Microsoft, or the U.S. government, does not like what you said in a document you wrote, they could post new instructions telling all computers to refuse to let anyone read that document" (116). Closed source software potentially inhibits Constitutional rights in a manner far more worrisome than the aforementioned interaction example. Dissent in such a scenario would no longer be something for the government or corporations to react to, forcefully or otherwise. Rather dissent will no longer be possible in the first place as the result of a system designed to prohibit it a priori.
It is with such Big Brother nightmares in mind that Lessig writes Free Culture. Thus, when he states that the subject of his book is not the Internet he is far from disingenuous, despite his preoccupation with technology. The Internet here is simply the newest (and perhaps most important) in a long line of technologies that have forced a confrontation between the way things have always been done and understood and the potential for the new that is the future of a free culture. (Early in Free Culture Lessig gives two other examples of such technologies: the airplane and FM radio, the former of which forced our understanding of land ownership to change, the latter of which was initially stifled by RCA because it threatened that company's AM radio empire.) Lessig's purpose in discussing technology is to argue for a jurisprudence that is able to account for the new, that can change according to the march of innovation. As the Internet influences and modifies the world, the law needs to account for that change and adapt to it. We cannot be held captive by the past, by laws designed to govern a society that could not possibly imagine the world in which we live. The trick, of course, is to create an adaptive legislature and jurisprudence that does not destroy the tenets upon which the United States was founded, as defined in the Constitution and the Bill of Rights. An understanding of the law as adaptive to new situations cannot become a license to deny free speech, a free press, free markets, or free thought. Such an understanding of the law must, instead, be deployed in order to protect those freedoms in the new contexts provided by technological innovation cum social revolution. Otherwise put, we must maintain the democracy that the United States purports to be into the twenty-first century; we must maintain a free culture.
Lessig writes, "[D]emocracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned discourse" (56). This discourse is enabled by new technologies in a manner never before possible. Free weblog services such as Blogger and Blogsome (not to mention free weblog platforms such as WordPress and Movable Type), free photosharing websites such as Flickr, and free video distribution channels such as Google Video and YouTube allow for asynchronous communication and debate between like-minded and opposed individuals in a wide range of media formats. Their ease of use and relatively inexpensive nature (as compared to traditional means of publication) lower what Lessig calls the "barrier to expression." Individuals no longer have to rely on corporate media for information and analysis of events, but can turn to any number of resources online to help them make sense of the world. More importantly, individuals can take part in this analysis directly by commenting on what others have produced or producing content of their own. Additionally, the production of content is not limited to writing in the traditional sense, but is open to all forms of new media literacies including visual and oral texts or some combination thereof. Granted, not all of this content will be worthwhile. Some will, no doubt, be underthought, unremarkable, or downright reprehensible. Such is the price of a free culture. The empowerment that the Internet and related technologies afford, however, far outweigh the potential for abuse. In fact, it is the potential for abuse that makes them so powerful. Likewise, it is the potential threat they pose to those entrenched in old models of content production that is the reason they are under attack.
I will provide a final example of the threat to free culture facing the United States, although there are many more I might mention.These include the proposed VEIL legislation (see story here), Sony's rootkit (see Cory Doctorow's timeline of the story at Boing Boing: Part I, Part II, Part III, Part IV, Part V, Part VI; see J. Alex Halderman and Edward W. Felten's paper, "Lessons from the Sony CD DRM Episode," here; see Bruce Sterling's commentary here), the broadcast flag (see the Electronic Frontier Foundation and Doctorow's "3 Minute Guide" here), Digital Rights Management (see EFF's overview of the issue here), and trusted computing (see Stallman's essay on trusted computing here and EFF's discussion here). Perhaps the most important pending court case having to do with technology and intellectual property is the lawsuit filed by a group of publishers against Google over its Book Search project, which would make contents of print books searchable. For books in the public domain, entire texts would then be available to researchers online. Texts still under copyright would be only partially available (often no more than several pages of a given text). Copyright holders can opt out of the program altogether. View Lessig's slideshow discussion of the case here. Download Lessig's discussion as a BitTorrent file here (link goes directly to torrent). The reason I have chosen to deal with this particular case is because it has, at first glance, seemingly little to do with technology. Instead it has to do with trademarks, which have existed long before the Internet and the current debates over intellectual property. H.R. 683, also known as the Trademark Dilution Revision Act, would, in the words of a letter sent to U.S. Senators by a coalition of concerned parties,Including the American Library Association, the Electronic Frontier Foundation, National Video Resources, the Professional Photographers of America, Public Citizen, Public Knowledge, and the Society of Children's Book Writers and Illustrators. "threaten[s] to harm consumers as well as artists and other small business owners both by making it more difficult for consumers to refer to big companies by mentioning their trademarks, and by making it more difficult for companies to promote their own products by providing truthful information to consumers about why their products are better." In other words, this bill, if passed into law, would make it difficult if not impossible to critique products by referring to their trademarks. It would also make other references to trademarks actionable offences. The parties to this letter make clear that they are not against the idea of trademarks in any way, but that these trademarks cannot be held beyond public scrutiny and democratic debate. Moreover, they cannot be held above the culture they permeate. If, as in one example provided in the letter, Don McLean was not allowed to sing about driving his Chevy to the levy, what would have been the effect on his song "American Pie"? McLean was not commenting on Chevrolet, but merely referring to a part of American culture, a culture that should, in Lessig's argument, be free for all to access and make use of. The Trademark Dilution Revision Act would replace this freedom with a system of controlled access. Given the pervasiveness of trademarks in our culture, should this bill pass it would be not difficult to imagine a scenario in which families find it impossible to take photographs while on vacation for fear of trademark dilution.
And while this bill and the issues with which it deals do not have a readily apparent relationship to the technologies that supply the inspiration and backdrop for Free Culture, it is precisely the Internet that motivates such legislation. Trademark owners are not concerned about people who mention their property in private, or take a photo to put in an album only to be seen by a select few (i.e. families). Such remarks and images may be critical of certain trademarks, but when they are not widely distributed they are little cause for worry. However, with the rise of free web-based services such as those listed above, what was once private has become public. Debates once held over family dinners can now be developed on web pages. Petitions to governmental officials now bear the signatures of tens of thousands rather than hundreds. Events that corporate news outlets do not deem worthy of coverage find lives in the obsessive writings of political bloggers on the left and the right. When Martin Luther posted his critique on a church door, many saw it and took notice. In the age of the Internet the potential audience for such content is increased by an order of magnitude. In short, the Internet, in Lessig's argument, is a space for democratic debate.
This argument is not necessarily a new one. Moreover, it is not a utopian claim. Lessig, more than anyone, understands that the Internet is not free because it is inherently, essentially free.For a full discussion the Internet and the nature of freedom online, see Lessig's Code and Other Laws of Cyberspace (New York: Basic, 1999). Code is also available online, as a wiki. Lessig has asked people to rewrite Code, accounting for the changes in the technological, cultural, and legal environments since the books initial publication in 1999. See the project here. For a theoretical discussion of how the Internet institutes control, see Alexander Galloway's Protocol: How Control Exists after Decentralization (Cambridge, MA and London: MIT P, 2004). The Internet is free to the extent that it is constructed as a free space, just as society is only as free as its legal system allows it to be. And with the rise of this democratic space has come the most severe backlash against democratic debate in recent memory in the form of such measures as the Trademark Dilution Revision Act. However, this debate is not one that is taking place between the political left and political right, but rather between those entrenched in positions of power and those who demand the right to speak out against (or simply alongside) those positions. As Lessig argues in The Future of Ideas: The Fate of the Commons in A Connected World: "This is a war about basic American values. It is about the values of balance and measure that should limit the government's role in choosing the future of creativity" (xvi, original emphasis). The choice, he later claims, is not between Left and Right or between being pro- or anti-market. Rather, "the real struggle at stake now is between the old and the new" (6, original emphasis). If we would build a future that is not merely a continuation of our past we must maintain our ability to be creative, the "free" in "free culture."
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004.
---. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001.
Stallman, Richard M. Free Software, Free Society: Selected Essays of Richard M. Stallman. Ed. Joshua Gay. Boston: GNU P, 2002.