Free Culture is Lessig’s effort to explain the change as he understands it. Much of the book is a reconsideration of two words — piracy and property — as they apply to creative or intellectual property. Who could possibly endorse piracy, a form of theft, taking something that isn’t one’s own? That is certainly the way the record, movie, and software industries have portrayed the issue: as simple right and wrong, legal and illegal.
Yet, as Lessig explains in some wonderfully informative historical passages, new media technologies — film, records, radio, and cable television — have always brought with them unauthorized use, charges of theft, and a period of legal and corporate wrangling before new rules were established. Cable TV, for example, refused to pay the broadcast networks for retransmitting their copyrighted telecasts. Eventually, a fee was set that cable operators did have to pay the broadcasters, but a modest one determined by Congress so the broadcasters did not have power over the emerging technology of cable. “Every generation welcomes the pirates from the last,” Lessig writes. “Every generation — until now.”
The author casts his stance as a call for level-headed moderation against the extremism of the “copyright warriors.” Lessig quotes congressional testimony by Jack Valenti, the recently retired president of the Motion Picture Association of America, in which he says that all Hollywood is asking is that creative property owners be accorded the same rights as all other property owners. While this sounds reasonable, creative property rights have always been treated differently from physical property, notes Lessig. Traditionally, some unauthorized but legal copying has been protected in the interests of education, innovation, and creativity.
Lessig is a clear thinker and a fluid writer. But Free Culture is an advocate’s brief, and he sometimes stretches to try to make his points. He observes that all creative culture borrows from the past, noting that Disney borrowed from fairy tales and legends for its animated classics, from Snow White to Mulan. This “borrowing” he equates with the music-copying mantra, “Rip, mix, burn.” But a teenager pointing and clicking a computer mouse hardly compares to Snow White, the pioneering animated feature and Academy Award winner.
Lessig nevertheless makes a powerful case that the pendulum in intellectual property law has swung too far in favor of powerful rights-holding companies. He cites a string of legal decisions and corporate actions that do run contrary to common sense, including Fox’s demand that a documentary filmmaker pay $10,000 for a scene showing opera stagehands watching The Simpsons on TV for four seconds.
My own sense is that the pendulum in the intellectual property debate has by no means come to rest. Lessig suggests as much at the end of his book: “I’ve told a dark story. The truth is more mixed.”
Darwin and Silicon Valley
Both The Keystone Advantage and Free Culture point to technology as a force that opens the door to larger realms — an ecology of innovation and business ecosystems. Two other books focus more narrowly on the technology business and what appears to be its march toward maturity.
The Business of Software: What Every Manager, Programmer, and Entrepreneur Must Know to Thrive and Survive in Good Times and Bad, by Michael A. Cusumano (Free Press, 2004), has grim news for the software industry, declaring that there are probably “too many software companies in the world by a factor of three or more.” But Cusumano, a professor at the Massachusetts Institute of Technology’s Sloan School of Management, regards the Darwinian winnowing not as a sign of graying old age, but as a necessary step toward renewal.