Article30 June 2004

Culture warrior
American legal theorist Lawrence Lessig takes on the regulation that is hampering our use of books, music and film.

by Sandy Starr

'The failure of imagination is that we can't really imagine how culture could be produced, other than concentrated industries producing and broadcasting. So anything that conflicts with that sounds extreme.'

The legal theorist Lawrence Lessig assures me that he is far from being the extremist troublemaker the entertainment industry likes to portray him as. Lessig, professor of law at Stanford Law School and founder of its Centre for Internet and Society, has made a name for himself as a tireless activist around issues of intellectual property (IP) (1). International renown came with his 1999 book Code and Other Laws of Cyberspace, which calls for a radical rethink of the relationship between technology, regulation, and law.

That book popularised the expression 'code is law', which is Lessig's shorthand for his idea that technology can regulate our behaviour in ways that supersede, or even undermine, the rule of law. The book's key message is that conflicts of interest in technology and regulation need to be openly grappled with, rather than being left to fester. 'If these conflicts aren't recognised by everybody whose interest is affected, then they will be resolved to favour those who have identified their interests', Lessig tells me. 'And governments and powerful corporations are the first to recognise their interests, and act on them.'

This theme also runs through Lessig's 2001 book The Future of Ideas: The Fate of the Commons in a Connected World, and his latest book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Where his first book identified four areas in which new technology would pose a challenge to existing law - IP, privacy, free speech, and sovereignty - his subsequent work concentrates mainly on IP. 'I picked it because it was the area that seemed least understood by people who were thinking about the way the internet was developing.'

Lessig has become a champion of the public domain, the collective term for those creative works - including books, films, music, and TV programmes - whose use is unregulated, leaving the public free to do whatever it likes with them, whenever it likes. Lessig believes that the public domain is currently under siege from excessive and wrongheaded regulation. 'As a matter of the history of ideas, the public domain was a very central concept that we have forgotten. The presumption today is control, but the presumption before was freedom.'

Intellectual property law originally sought to balance private reward for creativity with public benefit from creations, and so only allowed the copyright in creative works to be owned for limited periods of time. But in The Future of Ideas and Free Culture, Lessig reveals how the term of copyright has been relentlessly extended in recent years. Whereas the US copyright term was originally 14 years, with an optional additional 14 years if the author was still alive, it has been extended 11 times in the past 40 years. It now stands as the life of the author plus a whopping 70 years, or - if the work is anonymously, pseudonymously, or corporately authored - 95 years from the year of first publication or 120 years from the year of creation (whichever expires first) (2).

According to Lessig, it gets worse. 'If you look at the term of copyright, it looks like a pretty continuous line, going from 28 years maximum to 95 years. But the continuity of that line is overstated. Until 1978, copyrights were granted in two parts in the USA. So you had to renew your copyrights, so the average term was much less. And then in 1978, the renewal thing was eliminated. But even that overstates the continuity, because until 1978, you only got copyright protection for things you took an affirmative step to claim it for. In 1978, you get both automatic maximum term and automatic grant of copyright protection. So the average term triples, but the effective term increases by a factor of 25.'

Things look worse still when this regime is applied in the age of digital rights management - where technology can ration how much of a book you are allowed to read, or how often you are allowed to listen to a piece of music. 'The opportunity cost of losing the public domain has gone up dramatically. Before digital technologies, most uses of copyrighted work did not infringe the copyright. So you read a book - who cares if the copyright is 100 years or 500 years, you can still use the copyrighted work without entering into the copyright regulation field. In the digital world, you can't use a copyrighted work without infringing the copyright.'

Lessig criticises the businesspeople and legislators who have brought about this state of affairs, but he also takes on his own side in the debate. So he argues that those who object to excessive IP regulation too often appeal to the legal defence of 'fair use' - which is the right to use copyrighted works, for selected purposes, without obtaining the permission of the copyright owner. He believes that certain uses of creative works should be free from all regulation, even from the considerations of fair use.

'What nobody seems to recognise is that a huge chunk of activity, that in an analogue world was unregulated, has now presumptively become regulated - because when you migrate life to the digital space, everything you do produces a copy. So unregulated use has disappeared. And now, to defend the freedom to engage in unregulated use, falls on the shoulders of fair use.'

But don't we need a category that describes what you are entitled to read, watch and listen to, and on what terms? 'I'm not sure why the default should be fair use. I think the default should be rules that mark off content that is free to use. The public domain was such a rule. And to the extent that we can't have more rules like that, I'd like more explicit rules about fair use - not "here are four factors that you can hire a lawyer to interpret", but "here's a certain use that's clearly protected".

'What I want is a world where your freedoms don't depend upon the interpretation of a lawyer first. Freedom should be clear enough, and understandable enough, that anybody can engage in ordinary behaviour without fearing regulation.'

Lessig's belief that people should not have to seek legal advice, in order to negotiate everyday life and exercise freedom, is refreshing. The final section of Free Culture is entitled 'Fire lots of lawyers', which one can't imagine endearing him to the rest of his profession (3).

Does Lessig believe that we face more of an uphill struggle defending the public domain in the UK, lacking core legal principles of the kind that are enshrined in the US Constitution? 'It's harder to defend it constitutionally. But you know, we haven't been very successful at defending it constitutionally in America either.'

Lessig could be forgiven a hint of bitterness in this last comment, because he himself has made failed attempts to put a stop to the extension of copyright terms on constitutional grounds. In the case of Eldred v Ashcroft, Lessig - representing the website operator Eric Eldred and others, against the US attorney general John Ashcroft - argued that the most recent law extending copyright was unconstitutional, and sought to have it overturned. This lawsuit, filed in 1999, ended up before the US Supreme Court in 2002, where it failed (4).

Lessig gives a gripping account of this case in Free Culture, and blames himself for losing it, on the grounds that his arguments to the Supreme Court were informed by too idealistic a view of the US legal system. Does this mean that his idealism has given way to cynicism? 'I continue to be astonished at the decision. But every year, I have to teach another generation of kids why believing the law makes sense. So personally, I couldn't afford to be cynical.'

Following the Supreme Court decision, Lessig proposed a new US law - the Eric Eldred Act, or Public Domain Enhancement Act - which would incorporate several measures to make it easier and more likely for works to pass into the public domain (5). 'Members of both the House and the Senate are increasingly intrigued with the idea, so there's progress. I'm pretty sure something will happen in the next couple of years, to bring it about.'

Lessig has also been travelling around the world promoting the Creative Commons initiative that he helped to pioneer, which enables creators to reserve only selected rights in their work and leave other uses free to the public (6). 'Creative Commons is internationalising - some 60 countries are now in the process of porting licenses. There's an astonishing movement internationally, that far exceeds any expectation we ever had.' But Lessig's diverse activities are all part of the same broader cause: to take back the public domain.

If there's a flaw in Lessig's recent work, it's that he tends to get carried away arguing for the cultural potential of new technology. He is a deft thinker where law is concerned, but he is on much weaker ground when he latches on to fashionable concepts such as 'media literacy' and 'multiple intelligence' in order to make a point. In Free Culture, Lessig describes weblogs or 'blogs' - websites in diary format - as 'the most important form of unchoreographed public discourse that we have' (7). Surely this is something of an overstatement?

'What is the competing unchoreographed public discourse that we have?', he shoots back. 'Speaker's Corner? We don't have such a place in democracy today. People who have golden images of the past imagine earlier town hall meetings. Today, we don't have anything like that.' It's true that blogs can be a useful tool for exploring and expressing ideas, and that they come across as relatively dynamic in today's circumstances. But surely that says more about the sorry state of politics and public debate, than it does about the value of the content on blogs?

'I don't think the issue is the value of content, I think the issue is the disciplining of a democracy. I think the practice of participating in a blog space has an important effect on how citizens think about the world around them.' Lessig can sometimes sound disconcertingly like the modern champions of 'edemocracy' and 'social software', many of them in government, who believe that participating in online discussions is a social good in and of itself - regardless of whether the discussions are of any substance or consequence (8).

But at least Lessig practices what he preaches, running one of the best blogs on the web, full of lively commentary on the legal and technological issues of the day (9). Does he find that blogging is a distraction from his other work? 'It is integral to what I believe the role of somebody like me is supposed to be, which is to open yourself up to a certain kind of criticism. The easiest thing for a professor to do is to hide inside the academy, surrounded by sycophant students who depend upon your favour for their job.'

Such determination to engage with criticism is commendable. But Lessig is perhaps a little too self-deprecating here. His blog is a great read not because of the technology he uses to publish it, but because of the fine legal mind that goes into writing it. And while his open-minded enthusiasm about technology and culture is to be welcomed, he would do well to apply the same critical faculties to these things that he applies so effectively to law and policy.

Lessig comes across as alternately downbeat and upbeat about the prospects for revitalising the public domain. On the one hand, his recent work is full of dire warnings about the extent to which creativity will be stifled, if current regulatory trends continue. On the other hand, the campaigns that he is spearheading seem to be making an impact. Is he optimistic about the future?

'The struggle on the side of people fighting for free culture has become much more vibrant in the past five years. There are more people who get it. There are more people who are doing things about it. But that's a different question from the question of whether we will ultimately prevail. I don't yet see the reason to think we're going to win this. That doesn't mean there's not a reason to fight it - in fact, there's more of a reason to fight it.'

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig, is published by Penguin (buy this book from Amazon (UK) or Amazon (USA)). The Future of Ideas: The Fate of the Commons in a Connected World, by Lawrence Lessig, is published by Vintage (buy this book from Amazon (UK) or Amazon (USA)). Code and Other Laws of Cyberspace, by Lawrence Lessig, is published by Basic Books (buy this book from Amazon (UK) or Amazon (USA)).

Sandy Starr has consulted and written on internet regulation for the Organisation for Security and Cooperation in Europe, and for the European Commission research project RightsWatch. He is a contributor to Spreading the Word on the Internet: Sixteen Answers to Four Questions, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 576 KB)); From Quill to Cursor: Freedom of the Media in the Digital Era, Organisation for Security and Cooperation in Europe, 2003 (download this book (.pdf 399 KB)); and The Internet: Brave New World?, Hodder Murray, 2002 (buy this book from Amazon (UK) or Amazon (USA)).

Read on:

The Creative Commons, by Sandy Starr

Harnessing innovation, by Azeem Azhar

Who owns ideas?, by Joe Kaplinsky

spiked-debate: Copyright in the digital age

(1) See the Stanford Law School and Centre for Internet and Society websites

(2) See Sonny Bono Copyright Term Extension Act (.pdf 128 KB), United States Congress, 27 October 1998

(3) Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, Penguin, 2004, p304-306

(4) See Eldred et al v Ashcroft, attorney general (.pdf 801 KB), Supreme Court of the United States, October 2002

(5) See the Public Domain Enhancement Act website

(6) See the Creative Commons website; The Creative Commons, by Sandy Starr

(7) Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, Lawrence Lessig, Penguin, 2004, 41. Also see p35-40, 46

(8) See State machinery, by Sandy Starr; Social software - get real, by Martyn Perks

(9) See the Blog section of the Lawrence Lessig website

Reprinted from : http://www.spiked-online.com/Articles/0000000CA5BE.htm


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