Digital Copyright Protection: A review of Lawrence Lessig’s arguments in Free Culture

by Kelly Killelea

Lawrence Lessig’s argument regarding the balance between protecting intellectual property and fostering cultural creativity can be illustrated when examining the Wright Brothers’ invention of the airplane. During the time when the airplane was invented, property law defined one’s property to include the air space above the land which the individual owned. Due to the negative impact that the airplanes flying above farms had on livestock, farmers tried to fight the plane operators in defense of what they considered their ‘property’ -- the air above their farms. Ultimately, the Supreme Court ruled that the ancient doctrine defining property was no longer relevant and that common sense permits the airplanes to continue flying. The public gain outweighed the private interest of the farmers. This is a classic example of societal adaptation to new technological developments and how contextual relevance can negate a previously assumed incidence of trespassing. Additionally, Lessig points out a significant factor in how this decision came to be -- the farmers were not very powerful. Had they had powerful figures supporting them and the Supreme Court ruled differently, the cultural implications of airplanes may have been inhibited or even halted entirely. This is the fundamental issue behind Lessig’s concern. If powerful figures, companies and industries continue to protect intellectual property in the digital era in a way that negates creative development, our cultural growth will severely suffer.

Lessig's Argument

Lessig’s primary argument is that society’s ability to build upon existing creative work is what drives cultural innovations. He cites the examples below to support his claim:

Walt Disney took stories from the Public Domain and repurposed them in a new way that provided a significant cultural outlet for our country. “He animated the [Brothers Grimm] stories, with both characters and light. Without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the work of others is astonishing when set together” (Lessig, 23).

Doujinshi comics, derivative works of comics in the Japanese culture, exist when a comic writer takes the work of another comic and adds to it to make it his/her own. This practice is technically illegal under Japanese copyright law as, similar to American copyright law, derivative works are copyright infringements. “Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga (comics) flourish” (Lessig, 26). Ironically, an illegal infringement of copyright is actually what may fuel the comic market overall. Early days of American comics followed this suit, but since copyright regulations have increased, it has become difficult for American comic writers to follow the Japanese model.  One may attribute the endangerment of the comic industry to the increase in copyright regulation.

He argues that if we continue to limit the use and expansion of these cultural contributions with increased copyright regulations, we are inhibiting our ability to grow our culture.

 The Digital Era and Free Culture

When originally established in 1790, copyright law was very narrow and most significantly did not grant rights to the author of any derivative work (Lessig, 136), meaning that another person can freely create work based on the author’s original copyrighted work following a limited term. Lessig argues that limited copyright restrictions lead to cultural development. For example, books were freely translated into other languages, or books often became plays. Copyright law was modified multiple times over the years, but the most significant period of change was the 1990s. In 1992, the government ruled that copyrighters no longer needed to renew their copyrights. In 1998, the Sonny Bono Act extended copyrights to virtually exist for 95 years (Lessig, 134). As a result, American law no longer facilitated the Public Domain, at least not in a reasonable amount of time.  Duration of copyrights is not the only change that has occurred between 1790 and today. Another noteworthy change is the scope of the copyrights. Copyright is much broader and gives rights in many more contexts, importantly the rights over derivative works. This further limits innovative opportunities for future authors. Copyright law was originally intended to protect the commercial interests of authors in order to provide incentive to create innovative work. Now, even if the work no longer has commercial value, it is still protected under copyright law.

The changes that occurred in the 1990s that increased copyright protection coincided with the innovations of digital technology. With digital technology, the government needed to rethink intellectual property laws in this new context, just as it had to rethink physical property laws when the first airplanes flew over the farmers’ land. Lessig would argue that the changes made in these acts were not justified as they protect financial security of large corporations by limiting consumers’ fair use rights and access to Public Domain and by limiting opportunities for innovation. “Never in our history have fewer had a legal right to control more of the development of our culture than now” (Lessig, 170).

The widespread introduction of digital technology (i.e. Internet and Web) in the 1990s to the general population made copyrighted material more accessible and usable and changed the scope in which copyrighted works were consumed. Additionally, the costs of publishing one’s own content dramatically drop, therefore increasing interest and opportunity for cultural innovation. However, with new digital technologies, monitoring and detecting these infringements become more manageable as well (Lessig, 162). Copyright law was revised to further restrict use, regardless of the commercial value associated with the work.

Lessig argues that the only form of copyright infringement that is harmful is one that steals commercial value from the author. “The key to piracy that the law aims to quash is a use that robs the author of his profit. This means we must determine whether and how much p2p sharing harms before we know how strongly the law should seek to either prevent it or find an alternative to assure the author of his profit” (Lessig, 66). Lessig argues that it is virtually impossible to protect against this type of piracy without being detrimental to the beneficial forms of peer to peer sharing, for example sharing of works that are no longer available for purchase and sampling of works that eventually leads to purchase. “The network doesn’t discriminate between the sharing of copyrighted and uncopyrighted content. Thus has there been a vast amount of sharing of copyrighted content” (Lessig, 18). Lessig suggests that we look for a balance between regulation and free culture that allows the ‘good’ forms of infringements to outweigh unethical piracy.

Lessig also interestingly points out that regardless of the laws, society- especially the younger generations- will continue to illegally take copyrighted material. He suggests that embracing the opportunities of digital technology is the nature of the younger population and extremist copyright laws are forcing the youth to break the law. Digital technology opens opportunity to spread user generated content, even if for noncommercial use. “Using distributed intelligence, peer to peer systems facilitate the easy spread of content in a way unimagined a generation ago” (Lessig, 17). According to Lessig, this should be embraced rather than criminalized. Users should be allowed to use digital means to remake original content into content with a new meaning and message, or ‘remix.’ However, the law has yet to deem this ‘common sense’ as they did with the introduction of the airplane technology.

Lessig supports his claims in a number of contexts and illustrates how the government has protected copyrighters and their businesses more than the Constitutional framers had intended and more than the interests of free culture. He debates the validity of these governmental policies regarding copyright with Jack Valenti, President of the Motion Picture Association of America:

When describing Valenti, Lessig writes: ‘Valenti has established himself as perhaps the most prominent and effective lobbyist in Washington’ (Lessig, 116). Valenti argues that the law needs to protect creative property owners just like other property owners; however Lessig insists that these claims are not valid. Lessig argues that creative property owners do not have the same rights as all other property owners. The Constitution had originally called for copyright protection to be lifted after a certain amount of time (fourteen years) and the material would be entered into the Public Domain. The reasons for this ‘Progress Clause’ were to avoid overly powerful publishers and to allow for new innovations. Lessig suggests that supporters for increased copyright control, for example Valenti, fear that new innovation will displace them in their industry. However, he believes that this is natural progression of culture. “Organizations such as the MPAA, whose board includes the most powerful of the old guard, have little interest…in assuring that the new can displace them…But what’s good for the MPAA is not necessarily good for America” (Lessig, 119). He believes that Valenti and his supporters are refuting this natural progression with increased monitoring technology. 

Valenti does have a valid argument from an ethical standpoint and a logistical standpoint. Intuitively, it does seem as though using copyrighted material without permission is wrong. Lessig also agrees with this. He does not promote ‘stealing’ and capitalizing on commercial material. The discrepancy lies with what should become copyrighted, and Lessig’s argument is that the scope of copyright law is too broad and conflicts with the ecology of a free culture. This discrepancy lies within the definition of intellectual property and the execution of the rights of these property owners.

 Conclusion

Lessig’s arguments are strong and he provides substantial rationale and evidence to support his claims. However, he claims that the government and industry leaders are extremists with protecting intellectual property and for the wrong reasons (fear of displacement, resistance to change). Though this may be true, it appears as though he is an extremist himself. Intellectual property is treated with ownership, and we cannot retract these rights from content creators. Lessig’s most convincing point is the one he makes regarding the artists who create the copyrighted material. He is correct in saying that extreme copyright protection is hindering our free culture, but as he attests, there is no way to regulate the harmful kind of piracy without stunting creativity. Therefore, the change needs to come from the creators themselves. In the best interest of society, artists and publishers need to grant fair use rights back to consumers and revive the Public Domain. By doing so, not only are they helping our society live in an ecology of free culture, but their financial interests may benefit indirectly as well (as seen with the example of Japanese comics). Increased exposure and increased interest in one’s material is promotion and publicity that can benefit their commercial value. This would be the ideal situation, however this outcome is unlikely. It is unlikely that a profound number of influential artists and corporations will act in the interest of free culture, regardless of whether or not they can see the potential benefits for themselves. For the time being, it appears our culture will remain in the unsteady place between a free culture and a culture stunted with creative boundaries.