I just finished Lawrence Lessig’s book Free Culture (2004) and it has made me angry. A law professor specialized in intellectual property, Lessig demonstrates that we are caught in a dangerous, reactionary discourse about intellectual property in the Net era. His sincere advocacy for a freer society deconstructs the key elements of the debate on copyright and gives a desirable sense of perspective on this issue. Here a few elements worth retaining:
1) We have come to forget what intellectual property is really about. In a world where ownership amounts to the private sphere and becomes sacrosanct, we have lost the sense of what copyright was first designed for. It was conceptualized as a spur of creativity, to promote innovation by granting creators exclusive but impermanent rights to their respective works. Copyright aimed to foster public good by the means of individual pecuniary rewards.
On many occasions, Lessig comes back to the American Constitution’s first Article, Section 8: Congress is allowed « to promote 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 (…). He shows that lawmakers have understood long ago that progress required exceptions to these exclusive rights. But in this day and age, « rights » seems to prevail over « progress » – the mean becomes an end – and profesor Lessig proves in chapter four that it is a radical break with the American legal tradition (the same could be said about Europe). Lawmakers do not seem to understand that progress demands further exceptions. On the contrary, they choose to virtually suppress time limitations to these rights by extending copyright terms.
2) This rupture of our legal traditions ensues from a shift in the cultural economy and of a disconcerting collusion between the cultural industries and legislators. In the end you realize that it is not about rights. It is about merging and controlling, because the cultural industries believe control is the best way to survive. Yet, they only think that way because they use old economic schemes to sort out what is happening on the net. Most cultural industries executives look to be thinking that by controlling a market, they can fight back potential (innovative) competitors, thus securing revenues. Sadly, they have got it wrong. If so-called “Big Content” finally realized that encouraging more flexibility in the internet ecosystem would come down to increased financial and societal rewards, then most of the problem would be solved
Some might argue that it has always been that way. That major actors in the cultural industries have always tried to protect their monopolies. However, Lessig argues, because of the flaws of American political system, chiefly in public funding of political campaigns, lobbyists successfully « convince » lawmakers and always win the argument. Worse, the general public too buys into it, as it considers important to defend « property ». But, as Professor Lessig puts it: “A world in which competitors with new ideas must fight not only the market but also the government is a world in which competitors with new ideas will not succeed. It is a world of stasis and increasingly concentrated stagnation. It is the Soviet Union under Brezhev” (p. 128). Who is to blame for this conservatism? The easy answer would be lobbyists. You may point your finger at them on a personal level (if you ever know one), but personally I don’t think they can be held to the same standard as lawmakers themselves, who are responsible for the law-making system…
3) Most people do not see what is at stake in this debate. They do not see that, both as consumers and entrepreneurs, they are the victims. Opponents of free culture advocates point out that actual copyright law has not prevented phenomena based on copyright infringement like, say, vidding to develop; so far we have not seen a decrease in the access to cultural goods and, after all, digital revolution has made it way through. Why should people worry about copyright, especially when you consider how complex it has become over time? For all that, the legal system’s inability to adapt makes it totally hypocrite and it should be a matter of concern for any citizen, since it inhibits innovation and, rather than embracing new uses, progressively turns people into offenders. Here, Lessig quotes Electronic Frontier Foundation attorney Fred von Lohmann (p. 205): “If you can treat someone as a putative lawbreaker, then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another… If you’re a copyright infringer, how can you hope to be secure against seizures of your computer? How can you hope to continue to receive internet access”. And this is precisely to what we have come down to, with media conglomerates pushing the so-called graduated response (filtering of internet traffic+undermining of privacy+suspension of internet access)– a French invention of which my country should not be proud.