[Ecommerce] Review of Lessig's book on "copyright battles" and ICC reminder

[Manon Ress]

FYI:

Thursday, March 25th @6:00 (after Day Two of Internet Commons Congress Marc=
h 24-25, 2004
http://www.internationalunity.org/)

Larry Lessig "Free Culture" Book Party, sponsored by iapps & Public
Knowledge, 2639 Connecticut Ave, NW, Suite 210 - near Woodley Park/Adams
Morgan Metro station. (confirm with Melissa Ihnat, mihnat@publicknowledge.o=
rg)


and

Washington Post Review of Lessig's latest book:

Daily Book Review
Copyrights and Wrongs: Damming the Flow of 'Free' Information

By Chris Lehmann,
deputy editor of Book World, whose e-mail address is lehmannc@washpost.com
Tuesday, March 23, 2004; Page C02

FREE CULTURE

How Big Media Uses Technology and the Law to Lock Down Culture and
Control Creativity

By Lawrence Lessig

Penguin Press. 345 pp. $24.95

If, as the old New Economy shibboleth goes, information wants to be
free, why is it everywhere in chains? Why does the Recording Industry
Association of America bring enormous punitive lawsuits against high
school kids who have used their browsers to download MP3s? Why do online
archives -- which promise to be the most reliable forms of information
storage yet devised -- grind to a halt in the face of a copyrighted
poem? And why does Congress now enjoy the effective power to renew
copyrights in perpetuity -- even though no less an authority than the
U.S. Constitution states flatly that such congressional grants can exist
only "for limited Times"?

Stanford law professor Lawrence Lessig stalks these and other mysteries
of U.S. copyright enforcement in "Free Culture," a more judicial-minded
sequel to his earlier book "The Future of Ideas." Lessig is one of the
leading academic critics of our copyright regime, and since he has
advised or represented a good number of the individuals and online
enterprises that have run afoul of it, he has a strong firsthand
knowledge of the damage that over-vigilant copyrighting can do.

"Free Culture" presents a sobering list of indictments. Even before the
recording industry went on its present prosecution binge, bigfoot
proprietors of intellectual property were targeting the
reproduction-happy new technologies of the Internet world for often
absurd control initiatives. Adobe, the software company that licenses
many e-book titles, infamously instructed users of its version of "Alice
in Wonderland" -- a book that has long passed into the public domain --
that the book was under no circumstances to be "read aloud" (doubtless a
clumsy misstatement of the licensing proviso that the software was not
to be used on audio computer programs). And even though Lessig champions
the freest possible use of copyrighted materials, the e-book version of
his own "The Future of Ideas" instructs users that the text is not to be
copied, printed or read in recorded form over the computer.

The drive to control every use of copyrighted intellectual property has
indeed gone through the looking glass. As Lessig notes, old notions of
property ownership have ceded ground to technological advances -- as was
the case in 1945 when a North Carolina farming family named Causby
alleged that airplanes flying over their property infringed on what had
been established, in common law, as a property owner's right to claim
dominion over his land in all dimensions, even "to an indefinite extent,
upwards." The Supreme Court wisely rejected this argument, on the
straightforward grounds that (as the majority opinion held) "common
sense revolts at the idea."

But when larger and more lucrative interests appear to be threatened,
the law can become a much blunter instrument. At just about the same
time as the Causby case, the Radio Corp. of America successfully used
rulings that the company all but custom-ordered from the FCC to prevent
the inventor of FM radio, an RCA contract worker named Edward Howard
Armstrong, from introducing the FM spectrum into the media marketplace
for fear that it would damage the company's commercial interests.
Armstrong would never see his employer embrace his invention. In 1954,
bankrupt and demoralized by RCA's stonewalling, he took his own life.

As Lessig observes, the steady drift of intellectual property law has
continued in the direction of the RCA precedent, as opposed to the more
common-sensical approach of the Supreme Court's Causby ruling. Lessig --
one of those rare legal scholars with both a clear narrative voice and a
fine eye for historical irony -- notes that we hold intellectual
property as oddly sacrosanct, even though many of our present-day media
empires have roots in what might charitably be called a loose tradition
of free borrowing. Hollywood famously became the world's movie capital
mainly because New York-based movie producers wished to circumvent the
strictures of Thomas Edison's corporate patent on filmmaking from the
safe distance of another coast. And Walt Disney, whose corporate mascot
Mickey Mouse has been granted a recent exemption from the expiration of
his own copyright, introduced the chipper four-fingered rodent in an
animated short that parodied a Buster Keaton comedy, "Steamboat Bill, Jr."

The lesson here is not that Disney or Hollywood is by definition
criminal, but that culture always has and likely always will be a
dizzily appropriative enterprise, building on the knowledge, the
experimental idioms, the ideas and language of countless contemporary
creators and influential forerunners. Nevertheless, as the Internet
enables cultural productions to circulate much more widely and freely
than ever before, the world's biggest media players and their commercial
lobbies are using the law to freeze the production of culture in their
own historical moment, and to their own considerable advantage. And
Congress, well lubricated with lobbying dollars from media
conglomerates, has briskly obliged. The 1998 Digital Millennium
Copyright Act seeks to secure online copyright protections but has been
used to intimidate even law scholars into refraining from even
discussing weaknesses in proprietary codes. And the Sonny Bono Copyright
Term Extension Act (yes, you read that correctly) allows Congress to
extend copyright well beyond a creative work's originally stipulated
term -- and indeed well beyond what copyright attorneys call the
commercial life of a creative work. Indeed, the U.S. Congress now enjoys
the theoretical prerogative to extend copyrights in perpetuity. This
amounts, as Lessig argues, to a state of war on any coherent notion of
the public domain: "Never in our history have fewer had a legal right to
control more of the development of our culture than now. . . . Never has
copyright protected such a wide range of rights, against as broad a
range of actors, for a term that was remotely as long."

The first two-thirds of "Free Culture" make this case quite patiently
and effectively -- despite Lessig's occasional weakness for dramatic
italics. Unfortunately, Lessig devotes much of the remainder of the book
to a blow-by-blow account of Eldred v. Ashcroft, the test case he argued
against the Bono act before the Supreme Court. Lessig lost the case, and
he takes far too much time here pointing up his own flawed arguments and
strategic miscues, while trying to map out an alternative winning
strategy. Then again, it's hard to begrudge him a bit of obsessiveness
in the wake of the Eldred setback: As the rest of "Free Culture" makes
clear, the arcane ins and outs of today's copyright battles now mask a
much deeper cultural struggle in which the stakes have grown unthinkably
high.





  =A9 2004 The Washington Post Company

--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176