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Tuesday, April 16

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Free Culture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity, by Lawrence Lessig
Penguin Press 2004, 354 pages (Free download also available.)

In 1999, Lawrence Lessig was an up-and-coming legal scholar with a phat appointment at Harvard. His book Code and Other Laws of Cyberspace was a closely argued warning about the possible chilling effects censorship and regulation could have on the then-utopic Internet boom. By 2001, the bubble had burst and Lessig had moved on -- while other cyberpundits found their pools rapidly drying up, Lessig published The Future of Ideas. It was a wide-ranging work that took in everything from dergulation of the the phone system to wireless networks in Tonga. As a hopelessly ambitious synthesis of issues facing technology, the book bulged at the seams like an over-filled omelet. At the same time, his political call to arms struck some as a bit shrill. But most of us loved it, and with positions at Stanford, its center for Internet and Society, and a brand new not-for profit dedicated to establishing a "creative commons," Lessig became one of American's foremost public figures on issues of the law and technology.

At least until Eldred vs. Aschroft, the Supreme Court case in which Lessig defended Eric Eldred's rights against Congress' brand new law hypercharging Big Media's power to sue the little guy into oblivion. In front of the world, Lessig got his ass handed to him by Justice Ginsberg in a 7-2 decision that was the judicial equivalent of cutting off Lessig's hand, informing him of the true identity of his father, throwing him down an air duct and leaving him hanging on to a weathervane on the underside of Bespin City mewling piteously for the Millennium Falcon. In the aftermath of the case Eldred himself was, as it were, dipped in carbonite and shipped off to Jabba the Hut, while Lessig retreated to seclusion to think his options through. Now, in 2004, Lessig's training is complete and he is ready to continue his battle against the Empire. He's even constructed his own lightsaber, a new book entitled Free Culture. It rocks.

Lessig has learned his lessons well. The blurb on the back of Code tells bookstore owners to shelve it in "computing/law/current events" -- it was a book for people who cared about the details. Free Culture, on the other hand, is current events/law/computing. It's the kind of book designed to make computing and law current events and it's designed to appeal to anyone interested in the topic - even if they don't have a degree in law or computer science. Or much attention -- as Lessig no doubt intended it, it is a book that legislators can read on the plane. The argument of the book is made in the title alone. It's made in the first 14 pages, it's reiterated in "property," the central portion of the book. It's reiterated in the conclusion. In Free Culture, Lessig is more on point than Baryshnikov. A finely crafted, well-structured, rhetorically powerful volume, Free Culture is Lessig's attempt to rise about the nitty-gritty and give us The Big Picture, his answer to Jack Valenti's (Big Media's standard-bearer) attempt to "name it and frame it" on everything from file sharing to media concentration.

Jack Valenti's story is one of piracy -- the breakdown of property rights, law and order, and societal order more generally as music and movies are illegally downloaded. Lessig takes the exact same facts and orchestrates them in a different way. Valenti urges us to see the Internet and the changes it brings as threatening some of America's deepest values. Lessig, on the other hand, claims that America's true tradition is one of innovation and freedom. The Internet has changed the world, he claims, and we need to embrace that new world the exact same way our forefathers embraced everything from Democracy to jazz to the assembly line. Big Media's attempt to halt progress may be good for their business, he argues, but it's not good for most Americans and -- most importantly -- it's just not the American Way. Valenti keeps pointing to the duck of piracy. Lessig encourages us to refocus our attention and see the rabbit of progress.

Having been branded a radical Internet anarchist, Lessig is trying to move to the center. He takes great pains to stress -- repeatedly, over and over again -- that he does not condone illegal downloading. He accepts the reasonable parts of his opponents arguments. He believes in free markets and property rights -- in fact, these are the two things he is seeking to preserve. He works hard to paint his opponents as extremists who practice a "Soviet style" regulation. He paints Viacom and Disney as "mafia" who want to "break the kneecaps of the Internet." (p.193) They sue 12 year old girls for their life savings. They want to rob us of our rights because their business faces a strategic challenge. "Four students were threatened with $98 billion dollar lawsuit for building a search engine that permitted songs to be copied," writes Lessig, "Yet WorldCom -- which defrauded investors of $11 billion -- received a fine of a mere $750 million. And under [potential] legislation, a doctor would be liable for no more than $250,000 in damages for pain and suffering [caused by negligence]. Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient?" In Lessig's hands Jack Valenti becomes "the nation's foremost extremist when it comes to the nature and scope of 'creative property,'" a man who "speaks for an industry that cares squat for our tradition and the values it represents." (p.118)

One can't help but admire Lessig's style: tightly controlled, lucid, and elegant in a sparse way that manages to be both outraged and calmly detached at once. It's obvious what he's doing, but he's so good at doing it that you're forced to concede his point, regardless of where you stand politically. "The story of the last section was a crunchy-lefty story -- creativity quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you going," says Lessig. (p.188) Still, he argues, there is more than enough in his argument to endear him to the right. "Put on a Republican hat for a moment, and get angry for a bit," he urges, "A well-trained, regulation-minimizing Republican should look at [this] and ask, 'does this make sense?'" (p.104) Lessig claims the answer, regardless of which side of the aisle you're on, is no.

The rhetorical shift is necessary. Activists like Lessig have mostly fought their battles in court, trying to roll back the tide of industry advances by demanding recognition from the judicial branch. But at base many of their claims are not about whether this or that DVD descrambler is legal -- they are wider claims about what ought to be legal. This means making new laws rather than interpreting old ones. Two obstacles stand in their path.

First, public opinion is not with them -- their concerns are not those of the nation. Indeed, there isn't even a popular term for what Lessig is trying to do. Fight Internet censorship? Demand Electronic Freedom? But Lessig's book isn't about the Internet -- it's about the world that the Internet has created. Anti-Chilling-Effectivists? Pro-creativitians? His own self-description (filched from James Boyle) is "cultural environmentalist." I've no doubt the term will stick, but the term isn't on the public's radar screen. Second, the entire weight of Big Media's massive lobbying effort is against them. Amazingly (and, one should note, perceptively) Lessig has decided that it is easier to shift the balance of American common sense by changing the way the entire nation frames that debate. Free Culture is nothing less than a well-thought out attempt to "name and frame" the issues he cares about most. Change common sense first, he figures, then deal with the lobbyists.

His success will be measured by the reception of the Eldred Act, his proposed law to preserve the public domain. How will it do? It's hard to say. The steps of the Supreme Court are a very visible place to be, especially if you're walking down them cradling a handless arm and trying to find the Millennium Falcon so you can lick your wounds with the rest of the Rebel Fleet. With Free Culture, Lessig's argument, which has always been logically compelling, gains a new breadth and rhetorical force. But the nation's attention is elsewhere, and new assaults to civil liberties made by the War on Terror dovetail with many of his opponents agendas. At any rate, if Lessig does not ultimately win his crusade for free culture and free markets, it will not be for want of trying: Free Culture is Lessig's most accessible -- and most heartfelt -- work to date. May the Force be with him.

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