Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity

@book{citeulike:161715, abstract = {{A landmark manifesto about the genuine closing of the American mind. <br><br> Lawrence Lessig could be called a cultural environmentalist. One of America's most original and influential public intellectuals, his focus is the social dimension of creativity: how creative work builds on the past and how society encourages or inhibits that building with laws and technologies. In his two previous books, Code and The Future of Ideas, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in Free Culture, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they're inflicting are poisoning the ecosystem that fosters innovation. <br><br> All creative works-books, movies, records, software, and so on-are a compromise between what can be imagined and what is possible-technologically and legally. For more than two hundred years, laws in America have sought a balance between rewarding creativity and allowing the borrowing from which new creativity springs. The original term of copyright set by the Constitution in 1787 was seventeen years. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. What did he know that we've forgotten? <br><br> Lawrence Lessig shows us that while new technologies always lead to new laws, never before have the big cultural monopolists used the fear created by new technologies, specifically the Internet, to shrink the public domain of ideas, even as the same corporations use the same technologies to control more and more what we can and can't do with culture. As more and more culture becomes digitized, more and more becomes controllable, even as laws are being toughened at the behest of the big media groups. What's at stake is our freedom-freedom to create, freedom to build, and ultimately, freedom to imagine.} {"From ""the most important thinker on intellectual property in the Internet era"" (The New Yorker), a landmark manifesto about the genuine closing of the American mind. Lawrence Lessig could be called a cultural environmentalist. One of America's most original and influential public intellectuals, his focus is the social dimension of creativity: how creative work builds on the past and how society encourages or inhibits that building with laws and technologies. In his two previous books, Code and The Future of Ideas, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in Free Culture, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they're inflicting are poisoning the ecosystem that fosters innovation. All creative works-books, movies, records, software, and so on-are a compromise between what can be imagined and what is possible-technologically and legally. For more than two hundred years, laws in America have sought a balance between rewarding creativity and allowing the borrowing from which new creativity springs. The original term of copyright set by the Constitution in 1787 was seventeen years. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. What did he know that we've forgotten?}}, author = {Lessig, Lawrence }, citeulike-article-id = {161715}, comment = {"[T]he central claim of this book . . . is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law" (140). "In the middle of the chaos that the Internet has created, an extraordinary land grab is occurring. The law and technology are being shifted to give content holders a kind of control over our culture that they never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost" (181). Describes the development of digital technologies in terms of market. Digital technologies can contribute to the vibrancy of the market: "Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and cultivating culture; that market could include a much wider and more diverse range of creators; those creators could produce and distribute a much more vibrant range of creativity; and depending upon a few important factors, those creators could earn more on average from this system than creators do today—all so long as the RCAs of our day don't use the law to protect themselves against this competition" (9). Most people make a very simplistic connection between the internet and copyright, seeing that connection in terms of piracy vs. property (9-10). Jack Valenti, president of the Motion Picture Association of America, describes the connection as a fight against "terrorism" (10). "[T]hose simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet 'pirates' will also rid our culture of values that have been integral to our tradition from the start" (10). The war is over property (11). "Free culture is increasingly the casualty in this war on piracy" (173). Referring to rights in copy to sheet music, Lord Mansfield's opinion in a 1777 court case expresses the "animating injustice" of piracy that continues today: "A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use" (17). Lessig makes an important distinction between "republishing someone's work on the one hand and building upon or transforming that work on the other." That distinction, however, is being neglected by the law. That neglect serves corporate interests: "the law's role is less and less to support creativity, and more and more to protect certain industries against competition" (19). Lessig joins other IP lawyers in questioning the "if value, then right" notion of intellectual property. This questionable notion holds that if something has value, it must be owned (18). It has not, however, been the dominant principle of our IP laws. "Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity" (19). The notion of property does not "capture" all value (28)."We have always treated rights in creative property differently from the rights resident in all other property owners" (118). What we may need now is the environmentalist approach advocated by James Boyle, to enable us to see, describe, and remedy imbalances in the protection and use of creative properties. "[S]ome of the ways in which we might protect authors will have unintended consequences for the cultural environment, much like DDT had for the natural environment" (129). Buster Keaton's 1928 Steamboat Bill, Jr. (22). The subsequent 1928 introduction of Mickey Mouse in Steamboat Willie (21). The borrowing from one source to create a new one was commonplace in early cartoons (23). It is a form of creativity (24) and a form of fair use (28). In Japan, the manga, a form of graphic novels, have a particular subset: doujinshi, which is a copy that is transformed and thus added to (25-26). Getting the original manga author's permission is not part of doujinshi practice, and the existence of doujinshi enhances the popularity of manga (26). Because it is economically advantageous to all sectors of comics, no one tries to ban doujinshi (27). George Eastman's idea of getting a camera in every person's hands as "technologies of expression" (32-33). In the early days of photography, courts debated whether the subject needed to give permission before being photographed (33). Quotes Dave Yanofsky on the definition of media literacy: "the ability . . . to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it" (36). Twentieth-century media is "read-only," delivered to a passive audience (37). Because "[o]ne learns to write by writing and then reflecting upon what one has written," Lessig has a more democratic objective: "As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues" (45). This is the first time in our history that right in property was absolute (74). New technologies "change . . . the way content [is] distributed" (77), and in all previous instances, the law has eventually adapted to those changes (79). "[Z]ero tolerance is increasingly our government's policy" (181). "[J]ust because technology has weakened a particular way of doing business, it doesn't follow that the government should intervene to support that old way of doing business" (127). "Before the case of Donaldson v. Beckett [sic], there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born" (93). In the U.S., there was no clear public domain until the first copyright law in 1790 (133). Under that law, derivative works were legal (138). "[T]he law now purports to regulate any transformation you make of creative work using a machine. 'Copy and paste' and 'cut and paste' become crimes" (144). Until the 1976 copyright law, a copyright had to be renewed after a certain period, or it fell into the public domain. "In 1973, more than 85 percent of copyright owners failed to renew their copyright" (135). Today everything is automatically copyrighted. Moreover, it is not just a creative work but most uses of it that are automatically reserved to the property holder (138). "[C]opyright's duration has increased dramatically—tripled in the past thirty years. And copyright's scope has increased as well—from regulating only publishers to now regulating just about everyone. And copyright's reach has changed, as every action becomes a copy and hence presumptively regulated. And as technologists find better ways to control the use of content, and as copyright is increasingly enforced through technology, copyright's force changes, too. Misuse is easier to find and easier to control" (161-162). Technology makes it easy to detect infractions (186). Lessig charts the way rights in intellectual property have changed since 1790 (170-171). "We call the words from legislatures 'positive law.' We call the words from judges 'common law.' The common law sets the background against which legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it" (86). "[R]egulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow" (188). "Copyright may be property, but like all property, it is also a form of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors" (194). Powerful rights owners constitute a "cultural nobility," a "noble class . . . that is alien to our tradition" (10-11). "In theory, fair use means you need no permission," but practice is a different matter (99). Getting permissions from content owners can be expensive and time-consuming (103). Intellectual property law "was born as a shield to protect publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not" (99). "[T]he cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released" (106). As a result, "the creative process is a process of paying lawyers. . ." (107). When you steal physical property, you deprive the owner of that property. When you copy property, the owner still has possession of the original (83-84). All creative works have a second, noncommercial life (112). "Yet increasingly, any assumption about a stable second life for creative property does not hold true with the most important components of popular culture. . ." (113). Used books are legally bought and sold (141); most books stay in print for only a year (134). Since the spread of the internet, it is no longer appropriate for copies to be automatically classified as copyright violations (140). Jack Valenti believes in perpetual copyright (117). "In the clause granting congress the power to create 'creative property,' the Constitution requires that after a 'limited time,' Congress take back the rights that it has granted and set the 'creative property' free to the public domain" (119). Article I, section 8, clause 8 of the Constitution "does not say Congress has the power to grant 'creative property rights.' It says that Congress has the power to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors" (131). Lessig identifies "four different modes of regulation" that apply to intellectual property (121) and that interact with each other (123). 1. "Law . . . constrains by threatening punishments after the fact if the rules set in advance are violated" (121). 2. "Norms . . . punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state" (122). 3. The constraint of the market is effected through conditions: You can do X if you pay Y; you'll be paid M if you do N" (122). 4. "'[A]rchitecture'—the physical world as one finds it—is a constraint on behavior" (122). People trying to protect their intellectual property online "have turned to the courts, to the legislatures, and increasingly to technology to defend their 'property' against . . . 'piracy.'" (18). "[O]n the Internet, increasingly, rules are enforced not by a human but by a machine: Increasingly, the rules of copyright law, as interpreted by the copyright owner, get built into the technology that delivers copyrighted content. It is code, rather than law, that rules" (148). "This is the future of copyright law: not so much copyright law as copyright code" (152). "The DMCA was enacted as a response to copyright owners' first fear about cyberspace. The fear was that copyright control was effectively dead; the response was to find technologies that might compensate. These new technologies would be copyright protection technologies—technologies to control the replication and distribution of copyrighted material" (157). "[F]air use is not a defense to the DMCA. The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented" (157-158). "Technology becomes a means by which fair use can be erased; the law of the DMCA backs up that erasing" (160). "The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists—these are the real laws governing creativity. And these rules have little relationship to the 'law' with which judges comfort themselves" (187). }, howpublished = {Hardcover}, isbn = {1594200068}, keywords = {712, commons, copyright}, month = {March}, posted-at = {2007-04-28 13:46:06}, priority = {0}, publisher = {{Penguin Press HC, The}}, title = {Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity}, url = {http://www.amazon.ca/exec/obidos/redirect?tag=citeulike09-20\&amp;path=ASIN/1594200068}, year = {2004} }

TY - BOOK ID - citeulike:161715 L3 - citeulike-article-id:161715 TI - Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity PB - {Penguin Press HC, The} SN - 1594200068 N2 - {A landmark manifesto about the genuine closing of the American mind. <br><br> Lawrence Lessig could be called a cultural environmentalist. One of America's most original and influential public intellectuals, his focus is the social dimension of creativity: how creative work builds on the past and how society encourages or inhibits that building with laws and technologies. In his two previous books, Code and The Future of Ideas, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in Free Culture, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they're inflicting are poisoning the ecosystem that fosters innovation. <br><br> All creative works-books, movies, records, software, and so on-are a compromise between what can be imagined and what is possible-technologically and legally. For more than two hundred years, laws in America have sought a balance between rewarding creativity and allowing the borrowing from which new creativity springs. The original term of copyright set by the Constitution in 1787 was seventeen years. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. What did he know that we've forgotten? <br><br> Lawrence Lessig shows us that while new technologies always lead to new laws, never before have the big cultural monopolists used the fear created by new technologies, specifically the Internet, to shrink the public domain of ideas, even as the same corporations use the same technologies to control more and more what we can and can't do with culture. As more and more culture becomes digitized, more and more becomes controllable, even as laws are being toughened at the behest of the big media groups. What's at stake is our freedom-freedom to create, freedom to build, and ultimately, freedom to imagine.} {"From ""the most important thinker on intellectual property in the Internet era"" (The New Yorker), a landmark manifesto about the genuine closing of the American mind. Lawrence Lessig could be called a cultural environmentalist. One of America's most original and influential public intellectuals, his focus is the social dimension of creativity: how creative work builds on the past and how society encourages or inhibits that building with laws and technologies. In his two previous books, Code and The Future of Ideas, Lessig concentrated on the destruction of much of the original promise of the Internet. Now, in Free Culture, he widens his focus to consider the diminishment of the larger public domain of ideas. In this powerful wake-up call he shows how short-sighted interests blind to the long-term damage they're inflicting are poisoning the ecosystem that fosters innovation. All creative works-books, movies, records, software, and so on-are a compromise between what can be imagined and what is possible-technologically and legally. For more than two hundred years, laws in America have sought a balance between rewarding creativity and allowing the borrowing from which new creativity springs. The original term of copyright set by the Constitution in 1787 was seventeen years. Now it is closer to two hundred. Thomas Jefferson considered protecting the public against overly long monopolies on creative works an essential government role. What did he know that we've forgotten?} KW - 712 KW - commons KW - copyright N1 - "[T]he central claim of this book . . . is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law" (140). "In the middle of the chaos that the Internet has created, an extraordinary land grab is occurring. The law and technology are being shifted to give content holders a kind of control over our culture that they never had before. And in this extremism, many an opportunity for new innovation and new creativity will be lost" (181). Describes the development of digital technologies in terms of market. Digital technologies can contribute to the vibrancy of the market: "Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and cultivating culture; that market could include a much wider and more diverse range of creators; those creators could produce and distribute a much more vibrant range of creativity; and depending upon a few important factors, those creators could earn more on average from this system than creators do today—all so long as the RCAs of our day don't use the law to protect themselves against this competition" (9). Most people make a very simplistic connection between the internet and copyright, seeing that connection in terms of piracy vs. property (9-10). Jack Valenti, president of the Motion Picture Association of America, describes the connection as a fight against "terrorism" (10). "[T]hose simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet 'pirates' will also rid our culture of values that have been integral to our tradition from the start" (10). The war is over property (11). "Free culture is increasingly the casualty in this war on piracy" (173). Referring to rights in copy to sheet music, Lord Mansfield's opinion in a 1777 court case expresses the "animating injustice" of piracy that continues today: "A person may use the copy by playing it, but he has no right to rob the author of the profit, by multiplying copies and disposing of them for his own use" (17). Lessig makes an important distinction between "republishing someone's work on the one hand and building upon or transforming that work on the other." That distinction, however, is being neglected by the law. That neglect serves corporate interests: "the law's role is less and less to support creativity, and more and more to protect certain industries against competition" (19). Lessig joins other IP lawyers in questioning the "if value, then right" notion of intellectual property. This questionable notion holds that if something has value, it must be owned (18). It has not, however, been the dominant principle of our IP laws. "Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity" (19). The notion of property does not "capture" all value (28)."We have always treated rights in creative property differently from the rights resident in all other property owners" (118). What we may need now is the environmentalist approach advocated by James Boyle, to enable us to see, describe, and remedy imbalances in the protection and use of creative properties. "[S]ome of the ways in which we might protect authors will have unintended consequences for the cultural environment, much like DDT had for the natural environment" (129). Buster Keaton's 1928 Steamboat Bill, Jr. (22). The subsequent 1928 introduction of Mickey Mouse in Steamboat Willie (21). The borrowing from one source to create a new one was commonplace in early cartoons (23). It is a form of creativity (24) and a form of fair use (28). In Japan, the manga, a form of graphic novels, have a particular subset: doujinshi, which is a copy that is transformed and thus added to (25-26). Getting the original manga author's permission is not part of doujinshi practice, and the existence of doujinshi enhances the popularity of manga (26). Because it is economically advantageous to all sectors of comics, no one tries to ban doujinshi (27). George Eastman's idea of getting a camera in every person's hands as "technologies of expression" (32-33). In the early days of photography, courts debated whether the subject needed to give permission before being photographed (33). Quotes Dave Yanofsky on the definition of media literacy: "the ability . . . to understand, analyze, and deconstruct media images. Its aim is to make [kids] literate about the way media works, the way it's constructed, the way it's delivered, and the way people access it" (36). Twentieth-century media is "read-only," delivered to a passive audience (37). Because "[o]ne learns to write by writing and then reflecting upon what one has written," Lessig has a more democratic objective: "As more and more citizens express what they think, and defend it in writing, that will change the way people understand public issues" (45). This is the first time in our history that right in property was absolute (74). New technologies "change . . . the way content [is] distributed" (77), and in all previous instances, the law has eventually adapted to those changes (79). "[Z]ero tolerance is increasingly our government's policy" (181). "[J]ust because technology has weakened a particular way of doing business, it doesn't follow that the government should intervene to support that old way of doing business" (127). "Before the case of Donaldson v. Beckett [sic], there was no clear idea of a public domain in England. Before 1774, there was a strong argument that common law copyrights were perpetual. After 1774, the public domain was born" (93). In the U.S., there was no clear public domain until the first copyright law in 1790 (133). Under that law, derivative works were legal (138). "[T]he law now purports to regulate any transformation you make of creative work using a machine. 'Copy and paste' and 'cut and paste' become crimes" (144). Until the 1976 copyright law, a copyright had to be renewed after a certain period, or it fell into the public domain. "In 1973, more than 85 percent of copyright owners failed to renew their copyright" (135). Today everything is automatically copyrighted. Moreover, it is not just a creative work but most uses of it that are automatically reserved to the property holder (138). "[C]opyright's duration has increased dramatically—tripled in the past thirty years. And copyright's scope has increased as well—from regulating only publishers to now regulating just about everyone. And copyright's reach has changed, as every action becomes a copy and hence presumptively regulated. And as technologists find better ways to control the use of content, and as copyright is increasingly enforced through technology, copyright's force changes, too. Misuse is easier to find and easier to control" (161-162). Technology makes it easy to detect infractions (186). Lessig charts the way rights in intellectual property have changed since 1790 (170-171). "We call the words from legislatures 'positive law.' We call the words from judges 'common law.' The common law sets the background against which legislatures legislate; the legislature, ordinarily, can trump that background only if it passes a law to displace it" (86). "[R]egulation simply enables the powerful industries of today to protect themselves against the competitors of tomorrow" (188). "Copyright may be property, but like all property, it is also a form of regulation. It is a regulation that benefits some and harms others. When done right, it benefits creators and harms leeches. When done wrong, it is regulation the powerful use to defeat competitors" (194). Powerful rights owners constitute a "cultural nobility," a "noble class . . . that is alien to our tradition" (10-11). "In theory, fair use means you need no permission," but practice is a different matter (99). Getting permissions from content owners can be expensive and time-consuming (103). Intellectual property law "was born as a shield to protect publishers' profits against the unfair competition of a pirate. It has matured into a sword that interferes with any use, transformative or not" (99). "[T]he cost of complying with the law is impossibly high. Therefore, for the law-abiding sorts, a wealth of creativity is never made. And for that part that is made, if it doesn't follow the clearance rules, it doesn't get released" (106). As a result, "the creative process is a process of paying lawyers. . ." (107). When you steal physical property, you deprive the owner of that property. When you copy property, the owner still has possession of the original (83-84). All creative works have a second, noncommercial life (112). "Yet increasingly, any assumption about a stable second life for creative property does not hold true with the most important components of popular culture. . ." (113). Used books are legally bought and sold (141); most books stay in print for only a year (134). Since the spread of the internet, it is no longer appropriate for copies to be automatically classified as copyright violations (140). Jack Valenti believes in perpetual copyright (117). "In the clause granting congress the power to create 'creative property,' the Constitution requires that after a 'limited time,' Congress take back the rights that it has granted and set the 'creative property' free to the public domain" (119). Article I, section 8, clause 8 of the Constitution "does not say Congress has the power to grant 'creative property rights.' It says that Congress has the power to promote progress. The grant of power is its purpose, and its purpose is a public one, not the purpose of enriching publishers, nor even primarily the purpose of rewarding authors" (131). Lessig identifies "four different modes of regulation" that apply to intellectual property (121) and that interact with each other (123). 1. "Law . . . constrains by threatening punishments after the fact if the rules set in advance are violated" (121). 2. "Norms . . . punish an individual for violating a rule. But the punishment of a norm is imposed by a community, not (or not only) by the state" (122). 3. The constraint of the market is effected through conditions: You can do X if you pay Y; you'll be paid M if you do N" (122). 4. "'[A]rchitecture'—the physical world as one finds it—is a constraint on behavior" (122). People trying to protect their intellectual property online "have turned to the courts, to the legislatures, and increasingly to technology to defend their 'property' against . . . 'piracy.'" (18). "[O]n the Internet, increasingly, rules are enforced not by a human but by a machine: Increasingly, the rules of copyright law, as interpreted by the copyright owner, get built into the technology that delivers copyrighted content. It is code, rather than law, that rules" (148). "This is the future of copyright law: not so much copyright law as copyright code" (152). "The DMCA was enacted as a response to copyright owners' first fear about cyberspace. The fear was that copyright control was effectively dead; the response was to find technologies that might compensate. These new technologies would be copyright protection technologies—technologies to control the replication and distribution of copyrighted material" (157). "[F]air use is not a defense to the DMCA. The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented" (157-158). "Technology becomes a means by which fair use can be erased; the law of the DMCA backs up that erasing" (160). "The rules that publishers impose upon writers, the rules that film distributors impose upon filmmakers, the rules that newspapers impose upon journalists—these are the real laws governing creativity. And these rules have little relationship to the 'law' with which judges comfort themselves" (187). AU - Lessig, Lawrence PY - 2004/03/30/ UR - http://www.amazon.ca/exec/obidos/redirect?tag=citeulike09-20&amp;path=ASIN/1594200068 ER -