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.

The cries of the Naderesque

One day I hope to be able to unpack an idea like Larry Lessig. In this blog post, he explains his very level-headed reaction to Obama’s vote on the FISA bill.

It was a political mistake for the reasons I’ve already explained: it was self-Swiftboating. This shift is fuel for the inevitable "flip-flop" campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary "flip-flops" of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack "is different" Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.

But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.

And finally

please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not "compromising" to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of "principled rejection" of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).

The immunity hysteria

Summary of Lessig political reform speech on CNET

CNET’s Caroline McCarthy has posted a summary of one of Lawrence Lessig’s speeches associated with his Change Congress initiative.

“Even though today the individuals [in Congress] are better than the individuals who populated our government in the past, the problem of this corruption is much worse,” Lessig explained. “And it’s much worse because government today is much more significant. It’s first more critical to core national problems...and second, it’s more pervasive. The government’s fingers are everywhere.”
...
But the other big difference between the 19th century’s politics and today’s is what’s making possible Lessig’s mission at Change Congress: Daniel Webster’s America didn't have Wikipedia, WordPress, or Twitter. (It would’ve been kind of cool, though: “Wig shopping with @henryclay, then out to eat. WTF is with these tea prices?”) The Web’s tools have made it possible for far more information to make it into the hands of ordinary citizens, and those citizens in turn can use the Web to band together and work toward democratic action.

The post made me think of George Lakoff’s new book The Political Mind. According to Amazon, the book seems to be a rhetorical look at politics over the last decade or so, focusing on the ways in which pure rationality has failed progressives. I bought a copy yesterday, and I’m excited about reading it.

Lessig ‘08

Lawrence Lessig has launched a website, Lessig08.org, featuring a video where he explains

the launch of two exploratory projects—first, a Change Congress movement, and second, my own decision whether to run for Congress in the California 12th.

via O’Reilly Radar

More on Lessig for Congress

From TechCrunch

With the death of California Representative Tom Lantos on Monday, a special election will be held in April to fill his seat in Congress. Will Stanford Law professor Lawrence Lessig run? Already on Facebook, a “Draft Lessig for Congress” group has formed (with 554 members as of this posting). Lessig, who has long been a champion of Free Culture as a lecturer, intellectual property lawyer, and CEO of Creative Commons, has recently turned his attention to corruption. (He has a wiki about corruption here). In fact, his last lecture on Free Culture, which he has been giving for ten years, was on January 31.

People are making lots of hay out of the fact that Lessig registered the domain name “Change-Congress.com,” but to me this just sounds like preparation for his new work on government corruption.

Although I’m a fan of Lessig’s and I think he would make a great legislator, I wonder whether he would be interested in this post. It seems to me that he could have more influence on government as an outsider, and he wouldn’t feel the constant pressure to campaign that would hound him if he were an elected official.

Lessig gossip

Rumor has it Lawrence Lessig might be running for congress.

Lessig on supporting Obama: Character and integrity

Jim Brown at the Blogora recently posted a link to this video by Lawrence Lessig on why he supports Obama over Clinton. One of the main reasons Lessig prefers Obama is that he conducts himself with more character and integrity than Clinton. That point reminded me of Paul Krugman’s repeated comments on Bush’s lack of integrity during his 2000 campaign

Do you remember all the up-close-and-personals about George W. Bush, and what a likeable guy he was? Well, reporters would have had a much better fix on who he was and how he would govern if they had ignored all that, and focused on the raw dishonesty and irresponsibility of his policy proposals.

Lessig makes a pretty convincing argument Obama is running a more credible campaign than Clinton.

Flickr and copyright

The New York Times recently posted this story on the use of a Creative Commons-licensed Flickr photo in an ad campaign by Virgin Mobile Australia. The campaign appears to be mocking the subject of the photo (the ad can be seen here), and she and her family are suing. According to the article, Lawrence Lessig, who was served papers on behalf of CC, claims that the problem is not with CC or with the original photographer, but with Virgin’s commercial use of the photo.

As for giving more advice about the rights of the subjects who appear in photographs, Mr. Lessig said that Creative Commons has to be careful not to provide “what looks like legal advice.” But, he added, “this photographer did nothing wrong when he took this photo of this girl, and posted it on his Flickr page. What he did wasn’t commercial use, which triggers the legal issues. If there was a problem here, it was by Virgin.”