Free Culture and Our Public Needs

Free Culture and Our Public Needs

Francis Raven
Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity
Lawrence Lessig
New York, NY: The Penguin Press, 2004. $24.95 cloth, 345 pp.

Francis Raven reviews Lawrence Lessig’s Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.

Stanford law professor and first-tier cyberlaw theorist Lawrence Lessig has probably thought more about the relationship between copyright, the Internet, and technology than any other intellectual. In 1998 Lessig represented Web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the Sonny Bono Copyright Term Extension Act. Unfortunately, he lost the case. The reasons for the defeat are delineated in Lessig’s latest book Free Culture, a synthesis of recent popular thought on copyright. The central claim of Free Culture is that in the past decisions could have been made that would have both stunted (or destroyed) major technological industries and unnecessarily infringed upon the public domain. Fortunately, congress reacted to new technologies with only slight changes to copyright law, thereby helping to preserve a vibrant public sphere. However, with the pervasive influence of the Internet, Lessig believes that now the scales are being tipped against individuals and toward industry (a change that such groups as the Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA] have lobbied for). He believes that (at least in the long run) this inclination harms those rooted in creativity and that, instead of reinforcing the trend, the Internet “should at least force us to rethink the conditions under which the law of copyright applies” (140).

To adequately address his book I will first outline an argument for thin copyright protection based on what I term copyrightable goods. I will then outline the most common defense used by those who engage in copyright infringement (a defense which Lessig believes has been extended beyond its usefulness): fair use. Finally, I will summarize a few of the changes to intellectual property law that Lessig proposes in favor of a more just copyright regime.

Copyright and Public Goods: An Argument for Thin Copyright Protection

The U.S. Constitution charges congress with promoting “the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”; it is assumed, then, that such progress can be achieved through the grant of copyright monopolies. The most common argument in favor of the distribution of exclusive copyrights is that they provide a creative incentive for artists and scientists. But, as I will show, the characteristics of intellectual objects (objects that can be copyrighted) can support the contradictory arguments that 1) exclusive copyrights are necessary, and that 2) they should not exist at all. I conclude that appropriate copyright protection needs to protect incentives for producers while also defend the public’s right to a rich intellectual realm. This public realm might be equated with the public domain as well as Lessig’s `commons,’ as in the Creative Commons.

The copyright regime I have specified would enforce “thin” copyright protection that provides far weaker protection than the current copyright regime. For instance, the Sonny Bono Copyright Extension Act of 1998 extended copyright protection to the life of the author plus seventy years and, in the case of works created by corporate entities, the act extended protection to ninety-five years (a change Lessig fought in court). This is a far cry from copyright’s original duration of fourteen years (plus one possible renewal). It would be difficult to argue that these extensions provide any extra incentive for authors to create. That they attack the public’s right to a robust intellectual realm is certainly arguable.

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.

Copyright discussions often begin with the incentive argument: an incentive is needed to foster innovation because intellectual objects are non-rivalrous (with regards to consumption) and non-excludable before they are copyrighted. A non-rivalrous good’s enjoyment by some does not diminish the opportunity for others to enjoy it as well. A non-excludable good, by contrast, is that which any individual (who does not own the good) can consume or benefit from (at a relatively low cost). Since intellectual objects are non-rivalrous and non-excludable there is good reason to believe that without copyright protection authors would not create intellectual objects at all: without protection there would be (arguably) no way for authors to receive compensation for their work and to recoup the costs that went into producing the intellectual object at hand.

The fact that intellectual objects are non-rivalrous means that there is no reason why you and I cannot read the same book at the same time. My reading the same book that you are reading does not decrease your enjoyment in reading that book. The contrast with rivalrous private goods is clear: Take, for instance, a bag of honey Dijon Kettle™ potato chips that you have just bought from your local Whole Foods grocery store. If I eat all of your chips you can no longer derive pleasure from them and if you eat the chips I cannot derive pleasure from them. Edwin Hettinger aptly explains the concept of non-rivalrousness in his essay “Justifying Intellectual Property” by writing that intellectual objects are goods which “are not consumed by their use” (34).

Legally speaking, before intellectual objects are copyrighted they may be copied and no laws prevent people from doing so (and distributing and then selling those copies). This is not the case with physical property. That is, you cannot copy your Toyota Corolla (at least, not in the relevant ways). And so, in the legal sense, both intellectual objects and copyrighted works are non-excludable. But after the work is copyrighted it becomes excludable. It is important to note that a work is always already copyrighted after it has been instantiated in some form. Thus, people can exclude others from copying their books (and distributing or selling those copies), but this excludability only applies after copyright laws are in effect.

The second way intellectual works can be non-excludable relates to the difficulty in controlling their distribution. As Edwin Hettinger writes, “The marginal cost of providing an intellectual object to an additional user is zero, and though there are communications costs, modern technologies can easily make an intellectual object available at a very low cost” (34). That is, the reproduction of intellectual goods becomes increasingly cheap and thus the control of their distribution becomes increasingly difficult (even given strong copyright laws, since these laws can be easily broken).

The fact that intellectual objects are non-rivalrous and non-excludable leads to two contradictory conclusions. The first conclusion is that there is a compelling justification for having strong copyright laws because, without them, works that originally had great value will be copied by unauthorized entities and sold for very little, with none of the income returned to the author. However, the non-rivalrousness of intellectual objects also suggests compelling reasons for having weak (or thin) copyrights (or no copyrights at all). Simply stated, there is no reason why each person should not be able to possess all of the great works at a cheap price (and this is what weak or short copyrights would ensure). Such a rationale is especially compelling given the fact that the the reason for having copyrights at all is to ensure the progress of science and the arts.

The foregoing contradictions follow from the fact that intellectual works are non-rivalrous and non-excludable. Since they are non-rivalrous and non-excludable the law has every reason to leave them that way (that is, not to have copyrights) as it benefits the public; but there is also every reason to have strong copyrights so that authors will create intellectual works in the future. Hettinger notes the paradox of copyright justification: “It establishes a right to restrict the current availability and use of intellectual products for the purpose of increasing the production and thus future availability and use of new intellectual products” (48).

In light of such tensions we should measure copyright protection by both of its poles: producer’s rights and consumer’s rights. The best copyright protection will accept what both sets of rights demand to the extent that it can, but when it cannot, protection will side with the consumer since the consumer more or less corresponds to the public at large. What this means for enacting copyright policies is that copyright protection should exist, but it should exist no more than is necessary to promote the arts and sciences. That is, copyrights should be seen as incentives to create, not property rights. The fact that there are incentives will please authors and the fact that they are limited (through broad fair use exemptions, a healthy distinction between ideas and expressions, and having copyright protections for a relatively short period of time) will please users. All in all this is the best way of seeing our way through the tension at the heart of copyright law.

In terms of the law, copyright laws should be limited in duration and scope. First, copyright protection lasting for 70 years plus the life of the author (the current extent) is too long to be justified in terms of providing a creative incentive. Second, fair use provisions for copying parts of works should be broadened and minor infractions (such as private copying, regardless of the difficulties in defining what `private’ means) should not be prosecuted since small amounts of copying do not encroach on the effectiveness of the incentive for authors to create. Third, the idea/expression distinction should be strongly and vigorously maintained. While all of these changes appear on the surface to be siding with the public over authors the fact that copyright protection exists at all is obviously to the author’s advantage. Thus, these changes constitute a copyright regime that is more beneficial to all, authors and public included.

Copyright and Fair Use

One of the most common ways of making the copyright regime weaker is to increase the realm of fair uses. This defense has come to the fore quite recently as a result of the Recording Industry Association of America’s (RIAA) lawsuits against many alleged infringers of its members’ copyrights.

Fair use exemptions to copyright protection are instances where a strict reading indicates that a copyright law has been infringed upon but the courts have decided not to enforce the law in that instance. Without these fair use exemptions criticism of intellectual objects would not be possible, since without fair use exemptions partial quotation of a work would be disallowed. This issue came to the fore when billionaire Howard Hughes bought all of the copyrights which could potentially be used in a biography of him in order to suppress such a biography. Against his attempt at preemption, the court ruled that quotations from the articles about Hughes were protected by fair use exemptions.

Parody would also not be possible without broad fair use exemptions. An example is the recent case involving Al Franken’s Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Fox sued Franken for using its trademarked phrase “fair and balanced.” The suit was thrown out of court by U.S. District Judge Denny Chin who said the suit was “totally without merit.” Parodies are protected under the broad fair use exemptions that we enjoy and basically, these fair use exemptions are necessary for the enjoyment of free speech.

There are four factors the court uses when judging whether an infringement falls under the category of a fair use protection: (1) How was the alleged infringing text used and how original was the usage? (2) What type of work was it taken from? Scholarly or commercial? (3) How much of the work was taken? And (4) What was the effect on the market? When answering these questions, an instance is more likely to be exempted by the doctrine of fair use if a small segment of a scholarly text is used in an original or scholarly manner without much effect on the market. A work that presented the right answers to these questions would be an instance of principled fair use.

However, there are instances of principled fair use and instances of de facto fair use. De facto fair use is the fair use accorded to the private unauthorized copying of copyrighted works. There are reasons to believe that instances of de facto fair use will no longer be tolerated because of the reduction of transaction costs for delivering works to people in their homes and because of the new ability of copyright holders to know who is “privately” infringing on their copyrights. At least this is the world Paul Goldstein imagines when he invokes the Celestial Jukebox in his Copyright’s Highway: From Gutenberg to the Celestial Jukebox. The Celestial Jukebox is an imagined way of delivering (divisible) content to individuals. In actuality, it would be a digital repository of books, movies, and music all available on demand. The idea is that a person would have an account and each time they viewed or listened to copyrighted articles/books/songs/movies/shows on the Internet they would be billed. There are several advantages to such a scheme.

First, in theory, all possible content would be provided by such a jukebox. It would be a one stop shop for all of your educational and entertainment needs. Customers could save time (and money) searching for the content that they want. So it would be beneficial for the public at large. Second, such a jukebox would allow customers to purchase however much of the intellectual object they desire, thus solving the age old problem of divisibility. For instance, five years ago it was difficult to purchase a single song (apart from the hit single) whereas now you can purchase practically any single song and in the future you will probably be able to purchase samples. The same is true for books. As things now stand, if all you want to use from a book is a single chapter you must buy the entire book, whereas with the Celestial Jukebox you would be able to purchase as little of a book as you want. As Goldstein writes, “The celestial jukebox may reduce the transaction costs of negotiating licenses not only for complete works, such as journal articles, but for small fragments as well” (224). And since small fragments of a work can be delivered there is some question as to whether fair use (at least of the de facto variety) exemptions will be necessary.

However, even if I believe that in order to preserve principled fair use exemptions we will have to give up de facto fair use exemptions, this is unlikely ever to happen since people are being scared into settling with the recording industry over the lawsuits waged against them. In order for future fair use principles to emerge in the legal system it will be necessary for the fines for infringing upon the recording industry’s holdings to be significantly reduced. As it now stands civil penalties for copyright violation are $150,000 per song (Scott Morgan, “Columbus Farmers Market …”). This sum is obviously aimed at preventing non-private (primarily commercial) copyright infringements as opposed to private infringements. But it is such a large sum that it is forcing people (accused of private copying) to settle with the RIAA instead of going to trial. As a reporter for the Rocky Mountain News notes: “With the typical defendant exposed to damages of $750,000 to $150 million each, many legal experts say opting to settle before trial is a no-brainer.”

As it now stands people are not likely to go to court and so there will be no legal decision on the matter at hand, which is to what extent does private copying of copyrighted works violate copyright laws? Citizens who care about the public domain and its effect on free speech need to attempt to get Congress to repeal key sections of the law that enacted the $150,000 civil penalty per violation, the draconian Digital Millennium Copyright Act of 1998. Doing this will allow fair use, private copying, and copyright to come into a constructive dialogue.

However, Lessig believes that given the legal and cultural climate of the moment, the doctrine of fair use is having to take on too much. That is, since the duration and scope of copyrights are growing ever larger with harsher and harsher sentences attached to infringements of those copyrights, he believes that the fair use doctrine is an insufficient model for a just intellectual property law regime. Besides, to wage a fair use defense of a copyright infringement requires a lawyer, and a good one at that, which in turn requires a lot of money. About one of the individuals the RIAA sued, Lessig writes that he could indeed fight the RIAA: “He might even win. But the cost of fighting a lawsuit like this … would be at least $250,000. If he won, he would not recover that money. If he won, he would have a piece of paper saying he had won, and a piece of paper saying he and his family were bankrupt” (52).

Where to Go From Here

What Lessig’s Free Culture does best is to outline the direction intellectual property law should take if it is to be just. Lessig outlines five changes that could be made. First, he notes that currently every tangible expression automatically receives a copyright regardless of whether the author benefits from the copyright or not. This creates a situation where works are copyrighted even if it is not socially (or even individually) beneficial to do so. Lessig believes that a registration and renewal system such as we have had in the United States for much of our history would be more just and would promote creativity.

Second, Lessig thinks that the copyright term has become far too long (currently the life of the author plus seventy years for flesh and blood authors). Clearly, authors will not benefit from such long copyrights.

Third, and dovetailing with the argument against long copyrights, Lessig argues that the current expansiveness of derivative use makes no sense. Since “in the context of the Internet, the uncertainty about the scope of protection, and the incentives to protect existing architectures of revenue, combined with a strong copyright, weaken the process of innovation” (295). Hence, Lessig thinks that the law could remedy this problem “either by removing protection beyond the part explicitly drawn or by granting reuse rights upon certain statutory conditions. Either way, the effect would be to free a great deal of culture to others to cultivate. And under a statutory rights regime, that reuse would earn artists more income” (296).

Fourth, Lessig claims that we need to find pragmatic solutions to the fact that millions of people are illegally downloading music. To provide a solution to this problem Lessig categorizes file-sharing into four types:

(A) Those who are using sharing networks as substitutes for purchasing CDs.
(B) Those who are using sharing networks to sample, on the way to purchasing CDs.
(C) Those who use file-sharing to get access to content that is no longer sold but is still under copyright or that would have been too cumbersome to buy off the Net. (Goldstein’s Celestial Jukebox aims at eliminating this type of sharing right off the bat, but then inappropriately uses the exception as a model for all sharing.)
(D) Those who are using file-sharing networks to get access to content that is not copyrighted or to get access that the copyright owner plainly endorses. (Lessig 296-297)

Lessig believes, then, that we can minimize harm to copyright holders “while maximizing the benefit to innovation by: 1) guaranteeing the right to engage in type D sharing; 2) permitting noncommercial type C sharing without liability and commercial type C sharing at a low and fixed rate set by statute; and 3) while in this transition, taxing and compensating for type A sharing, to the extent actual harm is demonstrated” (303). Such a calm and pragmatic approach suits our divisive times well. It is possible that if this plan were implemented the debates over file sharing would soon end.

And finally, Lessig thinks that the intellectual property system should be able to function without millions of expensive lawyers. People should be able to negotiate the simple aspects of copyright law without the help of high-priced attorneys. If implemented, these five changes would result in a more just intellectual property system. Two actual outcomes of these ideas are the proposed Eric Eldred Act and the nonprofit group Creative Commons.

The Eric Eldred Act is an innovative proposal in the field of intellectual property which was introduced in June of 2003. Its introduction demonstrates how engaged intellectuals can create positive change even in the middle of a quagmire. The Eldred Act is a proposal for “a tiny tax designed to move unused copyrighted work into the public domain.” Many intellectual objects are protected by copyrights which are unused, meaning that they are copyrighted but no one is making any money off of them. In many cases nobody even knows who the copyright holder is. This situation leads to an unnecessary impoverishment of the public domain. Therefore, why not require copyright holders to pay a nominal fee (it could be as little as a dollar according to the drafters of the bill)? If the copyright holder did not pay this fee for three years in a row the work in question would revert to the public domain. The authors of the bill estimate that only 2 percent of work copyrighted has any continuing commercial value and that if this tax were enacted, within three years over 90 percent of this material would move into the public domain.

Lessig also believes that one way to rebuild “free culture” is through the establishment of a creative commons exemplified in the actions of such groups as the nonprofit group Creative Commons. He writes that the aim of the Creative Commons is “to build a layer of reasonable copyright on top of the extremes that now reign” (282). Under such a system authors (construed broadly) decide what protections they want their works to have. “Content is marked with the CC mark, which does not mean that copyright is waived, but that certain freedoms are given” (283). The Creative Commons website states that they “use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, [their] ends are cooperative and community-minded, but [their] means are voluntary and libertarian. [They] work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them - to declare some rights reserved. Thus, a single goal unites Creative Commons’ current and future projects: to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.” Offering your work under a Creative Commons license does not mean giving up your copyright. It means offering some of your rights to any taker, and only on certain conditions. The Creative Commons license rests on top of a person’s copyright, but the Creative Commons is not monolithic. A person can mix and match the following attributes:

Attribution: You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit.

Noncommercial: You let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only.

No Derivative Works: You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike: You allow others to distribute derivative works only under a license identical to the license that governs your work.

If thousands of artists chose such a system it would revolutionize the current intellectual property regime.

Works Cited

Bell, Tom W. Diagram of “The Paths of Intellectual Property.”

Goldstein, Paul. Copyright’s Highway: From Gutenberg to the Celestial Jukebox (revised edition). Stanford University Press, Stanford, California, 2003.

Hettinger, Edwin. “Justifying Intellectual Property,” Philosophy and Public Affairs 18 (1989) 31-52.

Mazzocco, Maurizio. Class notes: Chapter 13: Monopoly. University of Wisconsin Madison.

Morgan, Scott. “Columbus Farmers Market contemplates countersuing Recording Industry Association of America, which is suing market over pirated music.” Packet Online, 10/16/2003.

Samuels, Edward. “The Idea-Expression Dichotomy In Copyright Law.” 56 Tenn. L. Rev. 321 (1989).

Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York, NY: New York University Press, 2001.