Free Culture and the Internet
Review by Lynne Greer Jolitz
Copyright (C) Dr. Dobb's Journal, September, 2004
The Internet of today doesn't much resemble the Internet of decades ago. It wasn't developed with the express purpose of distributing works by artists, or making money off of sales of music CDs, or even for sending video on demand. The Internet, as Vincent Cerf said, was merely an attempt to "get a bag of bits from one point to another with a greater than zero percent chance of getting there." The fact that we can do this so reliably is a tribute to the Cerf-Kahn algorithm (TCP/IP) and the work of technologists who turned this lab experiment into a practical mechanism.
Yet, success does breed its own failure. In the circumscribed world of the early Internet, there was little need to build in control over work, code, and access. Ideas such as open source and file sharing and e-mail sprang from the desire to communicate ideas-not control them. The question of mediation of works was left unresolved.
So, as we watch the lawsuits and public policy debates grow ever more vitriolic, the stakes over the control of copyrighted works grow ever greater. Now, as Lawrence Lessig of the Stanford University Law School so aptly demonstrates in his new book Free Culture, the stakes are driven by interpretations of the U.S. Constitution itself. According to Lessig, we are engaged in nothing less than a war waged by the "monopolists of culture":
"To fight "piracy," to protect "property," the content industry has launched a war…As with any war of prohibition, these [direct and collateral] damages will be suffered most by our own people."
Lessig's book is a dark reading of traditional forces arrayed for battle, using lawyers, lobbyists, and money to rewrite laws to suit their immediate interests while placing barriers in the path of others through onerous lawsuits, criminal actions, and increased penalties for perceived non-sanctioned use of properties. Lessig argues that the erosion of copyright and fair use through these tactics is undermining our intellectual commons.
Free Culture at its core is the story of the personal battle Lessig took before the U.S. Supreme Court and the well-written and clear arguments that underlie his convictions are fascinating reading. Surprisingly, the actual case that resulted in the "Eldred Decision" takes up very little of the book, perhaps because it has been extensively written about elsewhere. However, since few people have been allowed to argue before the U.S. Supreme Court, a more intimate account and background of the Justices and their questions would have been most welcome for those of us who aren't "Court TV" junkies.
Lessig's candor in discussing his loss is refreshing, with little of the self-pity you might expect in such a one-sided (seven to two) Supreme Court opinion. He admits that he should have focused more on the question of harm, as his legal advisor suggested, instead of on the larger Constitutional issues he favored. In other words, better a narrow victory than a broad defeat.
However, "like a professor correcting a student," Justice Kennedy's invitation to discuss the "obvious and profound harm" was declined, in fact, Lessig took it further, stating, "Nothing in our Copyright Clause claim hangs upon the empirical assertion of impeding progress," which in retrospect he thought "was a correct answer, but it wasn't the right answer." Chief Justice Rehnquist, in particular, whom Lessig had hoped to appeal to per his earlier Lopez ruling, apparently wasn't very friendly either: "To him, we were a bunch of anarchists." Who says warfare only happens in chess?
Lessig's vision was large even by Internet standards, and perhaps it was just too much for the U.S. Supreme Court to accept. The question of harm, a public policy migration strategy, might still be the correct course of action to sew back together various factions. But like a failed grade on a student's exam, this question is quickly forgotten, left as an exercise to the reader.
In the end, the Internet may simply be viewed as another phone network, and much of this legal upheaval may vanish into the well-understood and arcane realm of telecommunications law and regulation. Recently, for example, the New York State Public Service Commission ruled that Vonage Holdings, a VOIP company, is actually a telephone company in disguise and is thus subject to state regulation. It may not be a visionary decision, but it is an understandable one.
Penguin Press, 2004
345 pp., $24.95