Lawrence Lessig

It might be crazy to expect a high government official to speak the truth. It might be crazy to believe that government policy will be something more than the handmaiden of the most powerful interests. It might be crazy to argue that we should preserve a tradition that has been part of our tradition for most of our history — free culture.
If this is crazy, then let there be more crazies. Soon.

The current term of protection for software is the life of an author plus 70 years, or, if it's work-for-hire, a total of 95 years. This is a bastardization of the Constitution's requirement that copyright be for "limited times." By the time Apple's Macintosh operating system finally falls into the public domain, there will be no machine that could possibly run it. The term of copyright for software is effectively unlimited.

The legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so astonishingly high that justice can practically never be done.

Here's a story: There was a documentary filmmaker who was making a documentary film about education in America. And he's shooting across this classroom with lots of people, kids, who are completely distracted at the television in the back of the classroom. When they get back to the editing room, they realize that on the television, you can barely make out the show for two seconds; it's "The Simpsons," Homer Simpson on the screen. So they call up Matt Groening, who was a friend of the documentary filmmaker, and say, you know, Is this going to be a problem? It's only a couple seconds. Matt says, No, no, no, it's not going to be a problem, call so and so. So they called so and so, and so and so said call so and so.
Eventually, the so and so turns out to be the lawyers, so when they got to the lawyers, they said, Is this going to be a problem? It's a documentary film. It's about education. It's a couple seconds. The so and so said 25,000 bucks. 25,000 bucks?! It's a couple seconds! What do you mean 25,000 bucks? The so and so said, I don't give a goddamn what it is for. $25,000 bucks or change your movie. Now you look at this and you say this is insane. It's insane. And if it is only Hollywood that has to deal with this, OK, that's fine. Let them be insane. The problem is their insane rules are now being applied to the whole world. This insanity of control is expanding as everything you do touches copyrights.

While the creative works from the 16th century can still be accessed and used by others, the data in some software programs from the 1990s is already inaccessible. Once a company that produces a certain product goes out of business, it has no simple way to uncover how its product encoded data. The code is thus lost, and the software is inaccessible. Knowledge has been destroyed.

Now, here's the thing you've got to remember. You've got to see this. This is the point. (And Jack Valenti misses this.) Here's the point: Never has it been more controlled ever. Take the addition, the changes, the copyrights turn, take the changes to copyrights scope, put it against the background of an extraordinarily concentrated structure of media, and you produce the fact that never in our history have fewer people controlled more of the evolution of our culture. Never.

I'm a lawyer. I make lawyers for a living. I believe in the law. I believe in the law of copyright. Indeed, I have devoted my life to working in law, not because there are big bucks at the end but because there are ideals at the end that I would love to live.
Yet much of this book has been a criticism of lawyers, or the role lawyers have played in this debate. The law speaks to ideals, but it is my view that our profession has become too attuned to the client. And in a world where the rich clients have one strong view, the unwillingness of the profession to question or counter that one strong view queers the law.
The evidence of this bending is compelling. I'm attacked as a "radical" by many within the profession, yet the positions that I am advocating are precisely the positions of some of the most moderate and significant figures in the history of this branch of the law.

It's insane. It's extreme. It's controlled by political interests. It has no justification in the traditional values that justify legal regulation. And we've done nothing about it. We're bigger than they are. We've got rights on our side. And we've done nothing about it. We let them control this debate. Here's the refrain that leads to this: They win because we've done nothing to stop it.

There has never been a time in history when more of our "culture" was as "owned" as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now.

A free culture has been our past, but it will only be our future if we change the path we are on right now. Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written.

The law should regulate in certain areas of culture — but it should regulate culture only where that regulation does good. Yet lawyers rarely test their power, or the power they promote, against this simple pragmatic question: "Will it do good?" When challenged about the expanding reach of the law, the lawyer answers, "Why not?"
We should ask, "Why?" Show me why your regulation of culture is needed. Show me how it does good. And until you can show me both, keep your lawyers away.

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 call upon an equally bloated range of rights — property rights of a historically extreme form — that makes their bigness bad.

Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. For that tiny fraction, the copyright creates incentives to produce and distribute the creative work. For that tiny fraction, the copyright acts as an "engine of free expression."
But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. As I've indicated, most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends.

"Writing" is the Latin of our times. The modern language of the people is video and sound.

Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.
In addition to these important harms, there is one more that was important to our forebears, but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law.
The war that is being waged today is a war of prohibition. As with every war of prohibition, it is targeted against the behavior of a very large number of citizens. 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 transform 20 percent of America into criminals.

I've told a dark story. The truth is more mixed. A technology has given us a new freedom. Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free culture into the twenty-first century, without artists losing and without the potential of digital technology being destroyed. ... Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized.

Americans have been selling this view around the world: that progress comes from perfect protection of intellectual property. Notwithstanding the fact that the most innovative and progressive space we've seen — the Internet — has been the place where intellectual property has been least respected. You know, facts don't get in the way of this ideology.

We Americans have a long history of fighting "big," wisely or not. That we could be motivated to fight "big" again is not something new.
It would be something new, and something very important, if an equal number could be rallied to fight the increasing extremism built within the idea of "intellectual property." Not because balance is alien to our tradition; indeed, as I've argued, balance is our tradition. But because the muscle to think critically about the scope of anything called "property" is not well exercised within this tradition anymore.
If we were Achilles, this would be our heel. This would be the place of our tragedy.

We live in a world with "free" content, and this freedom is not an imperfection. We listen to the radio without paying for the songs we hear; we hear friends humming tunes that they have not licensed. We tell jokes that reference movie plots without the permission of the directors. We read our children books, borrowed from a library, without paying the original copyright holder for the performance rights.

Here's a simple copyright lesson: Law regulates copies. What's that mean? Well, before the Internet, think of this as a world of all possible uses of a copyrighted work. Most of them are unregulated. Talking about fair use, this is not fair use; this is unregulated use. To read is not a fair use; it's an unregulated use. To give it to someone is not a fair use; it's unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book — that's regulated. And then within this small range of things regulated by copyright law, there's this tiny band before the Internet of stuff we call fair use: Uses that otherwise would be regulated but that the law says you can engage in without the permission of anybody else. For example, quoting a text in another text — that's a copy, but it's a still fair use. That means the world was divided into three camps, not two: Unregulated uses, regulated uses that were fair use, and the quintessential copyright world. Three categories.
Enter the Internet. Every act is a copy, which means all of these unregulated uses disappear. Presumptively, everything you do on your machine on the network is a regulated use. And now it forces us into this tiny little category of arguing about, "What about the fair uses? What about the fair uses?" I will say the word: To hell with the fair uses. What about the unregulated uses we had of culture before this massive expansion of control?