Review: Lessig, Free Culture (2004)

In Free Culture: The Nature and Future of Creativity, Lawrence Lessig argues that U.S. copyright laws have traditionally functioned to protect the freedom of culture to flourish. In its most common form before the previous century, copyright protected creators’ ability to control the publication—or its copying, not derivative uses—of their works for a limited period of time so as to ensure that there would be an incentive for the production of creative work. To ensure copyright, copyright holders had to mark their works with either the copyright symbol (©) or the word “copyright,” deposit a copy of the work with the government to ensure that it would remain available after the copyright term expired, and to either register the work with the government or renew the copyright if it was considered valuable enough to do so. Whatever works failed to comply with these provisions were considered part of the public domain and could be freely copied, distributed, or modified by anyone.

Copyright legislation in the twentieth century largely eliminated these provisions, however. Culminating with the Copyright Term Extension Act (CTEA), the U.S. government has continually increased the term of copyright such that very few cultural products have entered the public domain since the 1930s and completely eliminated the requirements that works be identified as being under copyright or registered with the government. Lessig attempts to show how these changes in copyright laws, coupled with the new behaviors for creating and disseminating creative materials brought about by new media technologies, have created a situation where the cultural capital of our society is increasingly controlled by the few elite individuals who have the power, resources, or inclination to navigate copyright regulations. According to Lessig, the basic structure of the internet makes practically all media usage “copying,” thereby making many kinds of usage that were previously out the range of copyright law—such as sharing mixtapes or clips of videos—now subject to it.

The most refreshing aspect of the book is that Lessig avoids the extremes of this debate: he is neither for blanket immunity from copyright restrictions nor restrictive legislation. He manages to avoid these extremes by not moralizing on copyright or taking only the damages that can be associated with copyright into account in his analysis. Rather, he focuses on copyright’s connection to the production and availability of cultural artifacts like music, movies, and books, arguing that while copyright legislation should punish uses that inhibit creativity—uses like downloading MP3s as a substitute for purchasing music—it shouldn’t limit the ability of culture to flourish through uses that don’t affect current copyright laws or which cause little damage to copyright holders. For example, he argues that VCRs were originally opposed by the movie and television industries because those industries assumed that the machine would hurt them financially. However, as VCRs became ubiquitous, it was discovered that their use promoted more sales of movies and television shows, and that copying off of television had very little economic impact on industry. Similarly, while Lessig argues against using P2P sharing to pirate music, he argues that the technology shouldn’t be crippled to avoid this problem because it can be used for other legal, culturally beneficial purposes.

As a rhetorician, I was interested in Lessig’s method in this book, particularly he examination of the ways in which “piracy” is defined in the copyright debate, as well as the history of the word’s usage to refer to practically any new media development that upset old ways of doing business. However, I was most interested in the middle section of the book where Lessig describes his fight in the Supreme Court to have CTEA declared unconstitutional. In this section, Lessig dwells for an extended period of time on the type of argument he made before the court—one that was overly logical, in his later opinion—versus the one he should have made. He claims that the reason he lost is that he failed to argue passionately to the court for why the CTEA caused damage to culture; instead he focused only on the constitutional issues involved in the case.

I found this section fascinating for a number of reasons. In the most general way, I was struck by how it demonstrated that even in what would presumably be an environment in which reason alone would determine the outcome of an attempt at persuasion—a Supreme Court case—, Lessig shows how the logos of his argument wasn’t enough to be convincing, and that he needed to include some pathos as well. More personally, I was able to empathize with his dejection after losing the case. I, too, have been in a situation where I realized belatedly that I had completely blown an argument by ignoring some simple, basic principle of rhetoric.

I also found this passage interesting for another reason: its complete lack of reference to the art of argumentation and persuasion. After his description of his argumentative failure, Lessig refers to rhetoric in the pejorative sense, equating it merely with style, flash without substance (p. 250). This passage only illustrated further how much rhetoricians have surrendered the public debate over argument and language to other disciplines.

In short, although the book is getting a bit old, Free Culture still seems fresh in its take on the copyright debate. I’m glad I finally got around to reading it.