Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig (Penguin Press, 2004), 345 pp., $24.95 (hardback, available as an Adobe or Microsoft eBook. Also available online for free at http://www.easylum.net/book/view/32).

Copyright law is changing as a result of the Internet, and constitutional law professor Lawrence Lessig is at the forefront of the debate over copyrights in the new millennium. Lessig argues that the media are using technology to keep rigid control over their content, ensuring that they will make lots of money but at the same time stifling creativity and eliminating the idea of the "public domain."

Born in 18th-century England, the Public Domain consists of all once-copyrighted works that are no longer copyrighted. They are the property of the people themselves, and no one can claim control over them. In the United States, all works – novels, short stories, films, plays, music – produced before 1930 are in the public domain. This means that if you want to post the text of Walt Whitman's poems online, you can do so without the permission of the Walt Whitman estate. It also means that any publishing house can produce an edition of Walt Whitman's poems without asking permission (although, when you go to Barnes & Noble, you must pay that publishing house if you decide to purchase that particular edition of Whitman's poems, which may include copyrighted explanatory or introductory material by a contemporary scholar). Since the 1930s, though, Congress has extended the term of copyright such that works produced today are copyrighted for 95 years. Originally, an artist had the right to fourteen years of exclusive ownership of his work. If the artist was alive at the end of this term, he could extend the copyright to for another fourteen years. After that fourteen years, however, the work ceased to be the exclusive property of the artist and passed into the public domain. Lessig himself was involved in the copyright process as counsel for the petitioner in Eldred v. Ashcroft, where he argued that the ability of Congress to continuously extend copyrights defied the Constitution's language that copyrights and patents be granted for "limited Times." It is also worth noting that Congress has not extended the length of time for patents, perhaps because the media do not lobby in Congress for extensions on patents the way they do for copyrights. Lessig notes that

ten of the thirteen original sponsors of the [Sonny Bono Copyright Term Extension Act] in the House received the maximum contribution from Disney's political action committee; in the Senate, eight of the twelve sponsors received contributions.3 The RIAA and the MPAA are estimated to have spent over $1.5 million lobbying in the 1998 election cycle. They paid out more than $200,000 in campaign contributions.4 Disney is estimated to have contributed more than $800,000 to reelection campaigns in the 1998 cycle.

Lessig's book is not limited to a discussion of copyrights and their infringement in the real world; indeed, most of the book is devoted to discussing copyrights in the virtual world (i.e. the Internet). He goes in great depth into discussing the issue of file-sharing and the Digital Millennium Copyright Act (DMCA), which has been used to prosecute any number of supposed violations of copyright on the Internet.

At its heart, Lessig's argument is that the restrictions imposed by these laws restrict our culture, which depends on a freedom of access to information. The law has been turned upside down by media companies. The original intention of copyright law, as Lessig explains, was to give one publishing house the exclusive right to print books. Now, copyright law governs even how we are allowed to use the content that we purchase outright from content providers. This is the ubiquitous "license agreement" that we agree to every time we install a particular product on our computers. It states, in no uncertain terms, that we do not own the software that we just bought; rather, we bought a license to the software, and this license tells us what we can and cannot do with that software. In some instances, the software itself limits our ability to use it. To demonstrate this, Lessig talks about his own Adobe eBook Reader, which limits his ability to use the eBooks that he purchased. In some instances, he has "the permission to copy to the clipboard of the computer ten text selections every ten days." In other instances, "no printing or copying is permitted at all. But fortunately, you can use the Read Aloud button to hear the book." Lastly, and most embarrassingly, in the case of his own book, The Future of Ideas, "No copying, no printing, and don't you dare try to listen to this book!" While this might be acceptable for works under copyright, the first book mentioned, called Middlemarch, is not under copyright. Says Lessig, "When my e-book of Middlemarch says I have the permission to copy only ten text selections into the memory every ten days, what that really means is that the eBook Reader has enabled the publisher to control how I use the book on my computer, far beyond the control that the law would enable." In his gigantic chapter ten, Lessig demonstrates how law like the DMCA allows content providers to overstep the bounds of copyright. For example, a stipulation of the First Amendment is called "fair use" and it allows a person the right to "the non-competitive right to use of copyrighted material without giving the author the right to compensation or to sue for infringement of copyright." A person may thus quote from Lessig's book without having to ask his permission – and yet, the Adobe eBook Reader doesn't allow him to do it! While he does have the right to copy as much of the text of the book as he wants, the software prohibits him from exercising that right, and if he were to modify the software so as to allow him to do with the work what is already allowed to do under law, he would be guilty of circumventing a copyright protection protocol, a violation of the DMCA. With regard to the DMCA, "fair use is not a defense to the DMCA. The question is not whether the use of the copyrighted material was a copyright violation. The question is whether a copyright protection system was circumvented."

In the end, he concludes that the problem does not lie with people who violate the law, but with the law for being too restrictive:

My point is not the idiotic one: Just because people violate a law, we should therefore repeal it. Obviously, we could reduce murder statistics dramatically by legalizing murder on Wednesdays and Fridays. But that wouldn't make any sense, since murder is wrong every day of the week. A society is right to ban murder always and everywhere.

My point is instead one that democracies understood for generations, but that we recently have learned to forget. The rule of law depends upon people obeying the law. The more often, and more repeatedly, we as citizens experience violating the law, the less we respect the law. Obviously, in most cases, the important issue is the law, not respect for the law. I don't care whether the rapist respects the law or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet introduced this different idea of "sharing." We need to be able to call these twenty million Americans "citizens," not "felons."

When at least forty-three million citizens download content from the Internet, and when they use tools to combine that content in ways unauthorized by copyright holders, the first question we should be asking is not how best to involve the FBI. The first question should be whether this particular prohibition is really necessary in order to achieve the proper ends that copyright law serves. Is there another way to assure that artists get paid without transforming forty-three million Americans into felons? Does it make sense if there are other ways to assure that artists get paid without transforming America into a nation of felons?

Lessig also talks about how the implementation of the law -- our court system -- is designed to favor of corporations with lots of resources. For a person to exercise fair use in a commercial context, the ideal is that he uses the copyrighted material with no problem. The practicality of fair use is that he will be sued by lawyers and must go to court to demonstrate that he has the right to use that copyrighted material. If the person has a limited amount of financial resources, chances are that he will drop the use of the copyrighted material altogether. Says Lessig, "The costs of negotiating the legal rights for the creative reuse of content are astronomically high. These costs mirror the costs with fair use: You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers -— again a privilege, or perhaps a curse, reserved for the few." The law as it is written may allow for fair use, but in the real world, that is easier said than done.

For anyone who cares about freedom, Lessig's book is terrifying. It points to a future in which there is no free use of intellectual property: someone always owns them, and someone must always be paid for them. The writers of the Constitution wanted to strike a balance between the rights of the artist and the necessity for a free society to have free access to that artist's work. Increasingly, the balance has shifted in favor of the artist (and not even the artist; rather, in favor of publishing companies and motion picture distribution companies) to the detriment of society.