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Free Culture: Chapter 12 – Conclusion

September 27, 2010

Lessig begins this section by arguing that there is a war between “piracy” and “property”; a war in which the government is now involved!

Is this war justified?

  • Lessig says this war is unjustifiable … “There is no good reason why this time, for the first time, the law should defend the old against the new, just when the power of property called ‘intellectual property’ is at its greatest in our history” (pg. 183).


He says that there will be 3 consequences of this war:

         1.     Constraining Creators:

  • “Capturing and sharing content, of course, is what humans have done since the dawn of man” (pg. 184).
    • It is this digital “capturing and sharing” which has afforded everyone who has access to these technologies the opportunity to produce, reproduce, and consume what we understand (now!) to be “culture”.
      • But those “capturing and sharing” symbols seen as illegal are given harsh (to put it lightly) penalties – i.e. the 4 students threatened by RIAA for a $98 billion lawsuit for “building search engines that permitted songs to be copied,” all the while, “a doctor who negligently removes the wrong leg in an operation would be liable for no more than $250,000 in damages for pain and suffering” (pg. 185).


Where’s the “common sense” in this?        

  • The consequence of this legal uncertainty, tied to these extremely high penalties, is that an extraordinary amount of creativity will either never be exercised, or never be exercised in the open. We drive this creative process underground by branding the modern-day Walt Disneys ‘pirates’. We make it impossible for businesses to rely upon a public domain, because the boundaries of the public domain are designed to be unclear. It never pays to do anything except pay for the right to create, and hence only those who can pay are allowed to create. As was the case in the Soviet Union, though for very different reasons, we will begin to see a world of underground art – not because the message is necessarily political, or because the subject is controversial, but because the very act of creating the art is legally fraught. Already, exhibits of ‘illegal art’ tour the United States. In what does their ‘illegality’ consist? In the act of mixing the culture around us with an expression that is critical or reflective” (pg. 185-186).
  • Never in our history has a painter had to worry about whether his painting infringed on someone else’s work; but the modern-day painter, using the tools of Photoshop, sharing content on the Web, must worry all the time. Images are all around, but the only safe images to use in the act of creation are those purchased from Corbis or another image farm. And in purchasing, censoring happens. There is a free market in pencils; we needn’t worry about its effect on creativity. But there is a highly regulated, monopolized market in cultural icons; the right to cultivate and transform them is not similarly free” (pg. 186).


         2.      Constraining Innovators:

                 What happens (pg. 190) –

  • A business is created that changes the way in which something is produced (i.e. and how it gave people access to music and gave them new means to produce musical content).
  • Then, the business is taken to court and found guilty and subsequently fined (in this case, found guilty “of willful infringement” and thus “the judge imposed a fine against of $118 million,” and settled with Vivendi Universal for $54 million)
  • Finally, the business is bought out by the larger/powerful corporation (Vivendi Universal purchased a later) and, in most cases, the same business is offering the same services – under the “mother corporation” – but this time for a price!


         3.     Corrupting Citizens:

 What happens in times of prohibition, in this case digital prohibition?

  • According to the New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony. We thus have a set of rules that transforms 20 percent of America into criminals” (pg. 199)
    • If the U.S. population in 2000 was 281,421,906 (according to the 2000 U.S. Census) and growing by 3 million people per year – that’s roughly 287,421,906 in 2002 – thus about 57.5 million people are “felons” according to RIAA.
  • Both open source and free software compete with big business software (in Lessig’s case Microsoft).
  • In talking about IBM, using OSF software and the company’s vision … “to support ‘open source and free software’ is not to oppose commercial entities. It is instead, to support a mode of software development that is different from Microsoft’s” (pg. 264).
  • More important for our purposes, to support ‘open source and free software’ in not to oppose copyright”(pg. 264).
  • OSF software, under the General Public License (GPL) … “requires that the source code for the software be made available by anyone who modifies and redistributes the software” (pg. 265).
  • Thus … “that requirement is effective only if copyright governs software. If copyright did not govern software, then free software could not impose the same kind of requirements on its adopters. It thus depends upon copyright law just as Microsoft does” (pg. 265).
  • The danger in media concentration comes not from the concentration, but instead from the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there are a few powerful companies that control an ever expanding slice of the media. It is that this concentration can pull upon an equally bloated range of rights – property rights of a historically extreme form – that makes their bigness bad” (pg. 269)
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