Peter Wayner writes: "When jury duty called, I was lucky enough to have a copy of Larry Lessig's new book, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, to take along. The Mitchell Courthouse in Baltimore is one of the most beautiful and ambitious marble allegories for how the law can be elegant, ornate, and permanently imposing. It was the perfect place to read a new book devoted to stopping the old guard media czars from using law to keep the couch potatoes down." Read on for the rest of Wayner's review of the book -- which is released today in hardcover, but also available for free online.
Lessig is now famous for a number of reasons, including his two previous books, Code and Other Laws of Cyberspace and The Future of Ideas : The Fate of the Commons in a Connected World. In the first, he was one of the first to affirm what many Slashdot readers know almost instinctively: whomever writes the code determines how the world works. Making the right decisions about power and control when designing a computer system is just as important as writing laws for the future. In the second, he writes of the importance of a vast cultural commons which acts as the wellspring for our expression and the grounding plate for our souls.
His new book is his most casual and most accessible. His prose is improving as he drops the footnote-heavy habit of legal writing and adopts a bloggier style driven by anecdotes and personal revelation. And what anecdotes he has -- Lessig's years on the barricades have given a surprisingly large collection of tales that will make any artist or citizen cringe. Time and time again, the powerful warlords of the entertainment conglomerates have banded together to try to stomp out the sharing and cooperation emerging from the Internet. After years of amassing a strangehold on the world's culture, the conglomerates aren't letting this cheap, fast and out-of-control technology sweep it all away.
My favorite anecdote, if one could be said to stand out, comes from a film maker documenting an opera company. When the camera caught a snippet of the stagehands watching the Simpsons with the sound turned down, the director wanted to add a four-second clip to the movie. Matt Groening said "Yes." The lawyers said it was clearly fair use. But Fox's executives responded with the kind of obscenity that doesn't upset the FCC: pay us $10,000. The clip didn't make the film because the director couldn't afford to go head-to-head with the Fox legal department.
This is just one of a number of stories of how interesting, invigorating content and innovation was strangled at birth by old guard. The anecdotes are, I think, an effort to atone for his loss in the Eldred case and reargue it. He presented the Supreme Court with a very logical and legal reading of why it was wrong for Congress to continue extending the length of a copyright monopoly and the court didn't buy it. A friend of his said that this tack was wrong because the court wanted to feel the depths of the injustice. The justices didn't want laws and footnotes, they wanted something human. Lessig blames his loss on not taking this advice. (As an aside, Lessig's personal description of taking a case to the Supreme Court is a good way to understand just how human the game can be.)
This time around, he piles the examples on top of more examples to show just how the conglomerates can hurt the artist and culture in general. After this case failed, Lessig tried another compromise that exposed the true goals of the copyright czars. Lessig describes his efforts to recreate a copyright registration system. If someone wanted to keep a copyright in force after 50 years, Lessig suggested getting them to pay a $1 fee. This would help everyone keep the copyright straight and make it simpler for everyone to understand just who has what rights to an art work. Any art work that goes unregistered flops into the public domain. Anyone who's tried to clear rights to a project will see this as a step in the right direction. The copyright industry, however, rejected this structure in a way that Lessig suggests illustrates how much this is about power and control, not creativity and expression.
Lessig has other tricks up his sleeve. If he can't convince the U.S. government to change the law, he can appeal to the artists themselves who have the ultimate control. He started his Creative Commons project several years ago and now artists can use several boilerplate licenses that reserve some of the rights while releasing others.
This new book itself is also available for free (PDF) under the license, a tactic that has worked well for Cory Doctorow and myself in the past. When I released Free for All under the license several years after the book was published, I watched the asking price on Amazon's used book market rise more than 40%. It wasn't a big jump, but it was still a bit counterintuitive. The freely available text encouraged people to buy the more readable printed version. I think Lessig will see the same effect. The sales driven by the people who read the electronic version will be greater than the sales lost to the people who just read the downloaded copy.
The good news is that the markets and the consumers are already heeding Lessig's advice because they instinctively disdain a monopoly. The power of the old networks is rapidly disappearing and the increasing concentration among the old guard is as much an illustration of the last ditch effort by the executives to cash out by taking large bonuses from the transactions. Some worry about the concentration of power in the radio world by companies like Clear Channel. But who listens to radio for music any longer? One Clear Channel station near my house plays traffic reports every 10 minutes during the day because their audience is dominated by people trapped on aptly named "parkways". The station may play as few as three songs an hour between 6:30am and 9am. The rest of the time, they yak about movies or the weather and their influence upon music continues to drop.
There are surprisingly good alternatives developing to take over the space. Lessig does an excellent job describing how the Internet radio stations were mugged with unfair regulations, but it's important to remember that they continue to exist because they offer something better than endless traffic reports. Furthermore, competition is coming from strange places. Starbucks is just one such company selling commercial- free mix tapes that are, for almost all intents and purposes, just a plastic disk version of a cool DJ. More and more radio-like venues are appearing.
There are other reasons why the concentration is backfiring. Lessig does a good job explaining how the television networks are squeezing out competition from independent producers. He describes how Norman Lear was only able to bring us "All in the Family" because he was free to take his work from ABC to CBS. That freedom disappeared after Congress repealed the laws forbidding the networks from owning stakes in the shows they broadcast. Now, if you want to get on CBS, it helps to sell a part of your show to CBS or, even better, just sell the whole thing.
But is this strategy really working for the networks? Their ratings continue to plummet. There's a reason why there are so many drug commercials for arthritis remedies on network air. That generation is the last one who watches network television almost instinctively. Lessig likes to complain about the "soviet" nature of these networks. It's a wonderful word that reads on many levels. The more they squeeze out competition and aggregate power in the committees, the more they lose the fluid competition that lets cream rise to the top.
So, who really cares if CBS isn't available on the Dish network? There are hundreds of other channels offering good fare. It was a different story in the 1970's when there were only three networks and CBS offered shows like "All in the Family" and "Mary Tyler Moore". Then, they controlled the heart of our popular culture. Today, the network ratings are so low on Saturday night that all of the networks are looking for a way to stop broadcasting on that day. Aside from the NCAA basketball tournament, I've lived without CBS for years without missing a thing. (Even then, I get most sports news from the websites.) The DVD player is a very, very powerful and destructive technology. When you can buy 50 movies for $30, who even needs CBS, the Dish network or HBO?
All of these idea swirled through my mind as I read Lessig's book and waited during jury duty. Are things getting worse or better? Are the 40+ million plus fileswapping pirates winning, or are the draconian laws crushing our creativity like a jackboot? I spent my time thinking of this balance while waiting for the judge and the attorneys to sift through 150 people to find the right 12 folks to render a fair and impartial verdict. On one hand, it was remarkable that society was being so careful before imprisoning someone for attempted murder. On the other, it was clear that the effort can't be sustained for the 40 million+ file sharing pirates who are thumbing their nose at the law.
Lessig understands this. One of his most persuasive arguments is that the current law becomes more marginalized as
it becomes increasingly less fair. Prohibition of alcohol corroded the law and now the increasing prohibition of
fair use is eroding respect for copyright.You only need to travel a few blocks from the Mitchell court house to end
up in dangerous regions of Baltimore where the marble and the pomp can't do much to protect you. Lessig, the lawyer,
knows the law can only work when it is fair and equitable. This new book is a strong and passionate argument for how
we can restore some sanity to the system and restore our faith in copyright law. Some people think that Lessig is trying to "smash"
the copyright system, but I think he's just trying to restore its ability to function.
Peter Wayner is the author of Free for All , a book on the open source movement and Policing Online Games, a book on how to build the Mitchell courthouse in cyberspace. You can purchase Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity from bn.com. Slashdot welcomes readers' book reviews -- to see your own review here, read the book review guidelines, then visit the submission page. mpawlo points out you can get the book free and gratis via Bittorrent.