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Free Culture: How Big Media Uses Technology and the Law to Lock This PDF version of Free Culture is licensed under a Creative Commons license. This license permits non-commercial use of this work, so long as attribution is given. For more information about the license, click the icon above, or visit <http://creativecommons.org/licenses/by-nc/1.0/>. -- Buy a copy of this book: click here 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 FREE CULTURE R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ALSO BY LAWRENCE LESSIG 28 29 The Future of Ideas: The Fate of the Commons 30 in a Connected World 31 S32 Code: And Other Laws of Cyberspace R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 THE PENGUIN PRESS 30 NEW YORK 31 2004 32S 33R ❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘ ❘❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 FREE CULTURE 25 HOW BIG MEDIA USES TECHNOLOGY AND THE 26 HOW BIG MEDIA USES TECHNOLOGY AND 27 LAWTHE TOLAW LOCKTO LOCK DOWN DOWN CULTURECULTURE AND CONTROL 28 CREATIVITYAND CONTROL CREATIVITY 29 30 LAWRENCE LESSIG 31 S32 R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page vi 1 2 T HE P ENGUIN P RESS 3 a member of Penguin Group (USA) Inc. 4 375 Hudson Street 5 New York, New York 10014 6 Copyright © Lawrence Lessig, 2004 7 All rights reserved 8 Excerpt from an editorial titled “The Coming of Copyright Perpetuity,” 9 The New York Times, January 16, 2003. Copyright © 2003 by The New York Times Co. 10 Reprinted with permission. Cartoon by Paul Conrad on page 159. Copyright Tribune Media Services, Inc. 11 All rights reserved. Reprinted with permission. 12 Diagram on page 164 courtesy of the office of FCC Commissioner, Michael J. Copps. 13 Library of Congress Cataloging-in-Publication Data 14 Lessig, Lawrence. 15 Free culture : how big media uses technology and the law to lock down 16 culture and control creativity / Lawrence Lessig. p. cm. 17 Includes index. 18 ISBN 1-59420-006-8 (hardcover) 19 1. Intellectual property—United States. 2. Mass media—United States. 3. Technological innovations—United States. 4. Art—United States. I. Title. 20 21 KF2979.L47 2004 343.7309'9—dc22 2003063276 22 23 This book is printed on acid-free paper. 24 Printed in the United States of America 25 13579108642 26 Designed by Marysarah Quinn 27 Without limiting the rights under copyright reserved above, no part of this publication may 28 be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or 29 by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. 30 31 The scanning, uploading, and distribution of this book via the Internet or via any other 32S means without the permission of the publisher is illegal and punishable by law. Please pur- chase only authorized electronic editions and do not participate in or encourage electronic 33R piracy of copyrighted materials. Your support of the author’s rights is appreciated. 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page vii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 To Eric Eldred—whose work first drew me 15 to this cause, and for whom 16 it continues still. Co17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page ix (to navigate this PDF, use the bookmark bar) 1 2 3 4 5 6 7 8 9 10 11 CONTENTS 12 13 14 15 In16 17 PREFACE xiii 18 INTRODUCTION 1 19 20 “PIRACY” 15 21 CHAPTER ONE: Creators 21 22 CHAPTER TWO: “Mere Copyists” 31 23 CHAPTER THREE: Catalogs 48 24 CHAPTER FOUR: “Pirates” 53 25 Film 53 26 Recorded Music 55 27 Radio 58 28 Cable TV 59 29 CHAPTER FIVE: “Piracy” 62 30 Piracy I 63 31 Piracy II 66 S32 R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘<http://free-culture.org/get-it> ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page x 1 “PROPERTY” 81 2 CHAPTER SIX: Founders 85 3 CHAPTER SEVEN: Recorders 95 4 CHAPTER EIGHT: Transformers 100 5 CHAPTER NINE: Collectors 108 6 CHAPTER TEN: “Property” 116 7 Why Hollywood Is Right 124 8 Beginnings 130 9 Law: Duration 133 10 Law: Scope 136 11 Law and Architecture: Reach 139 12 Architecture and Law: Force 147 13 Market: Concentration 161 14 Together 168 15 16 PUZZLES 175 17 CHAPTER ELEVEN: Chimera 177 18 CHAPTER TWELVE: Harms 183 19 Constraining Creators 184 20 Constraining Innovators 188 21 Corrupting Citizens 199 22 23 BALANCES 209 24 CHAPTER THIRTEEN: Eldred 213 25 CHAPTER FOURTEEN: Eldred II 248 26 27 CONCLUSION 257 28 29 AFTERWORD 273 30 Us, Now 276 31 Rebuilding Freedoms Previously Presumed: 32S Examples 277 33R Rebuilding Free Culture: One Idea 282 ❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘ ❘❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xi Them, Soon 287 1 1. More Formalities 287 2 Registration and Renewal 289 3 Marking 290 4 2. Shorter Terms 292 5 3. Free Use Vs. Fair Use 294 6 4. Liberate the Music—Again 296 7 5. Fire Lots of Lawyers 304 8 9 NOTES 307 10 ACKNOWLEDGMENTS 331 11 INDEX 333 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 S32 R33 ❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘ ❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙ ❚❘❙❚❘❙❚❘❙❚❘❙❚❘❙❚❘❘❘❙❚❘❙❚ ❙❚❘❙❚❘❙❚ 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xiii 1 2 3 4 5 6 7 8 9 10 11 PREFACE 12 13 14 15 At the end of his review of my first book, Code: And Other Laws of In16 Cyberspace, David Pogue, a brilliant writer and author of countless 17 technical and computer-related texts, wrote this: 18 19 Unlike actual law, Internet software has no capacity to punish. It 20 doesn’t affect people who aren’t online (and only a tiny minority 21 of the world population is). And if you don’t like the Internet’s 22 system, you can always flip off the modem.1 23 24 Pogue was skeptical of the core argument of the book—that soft- 25 ware, or “code,” functioned as a kind of law—and his review suggested 26 the happy thought that if life in cyberspace got bad, we could always 27 “drizzle, drazzle, druzzle, drome”-like simply flip a switch and be back 28 home. Turn off the modem, unplug the computer, and any troubles 29 that exist in that space wouldn’t “affect” us anymore. 30 Pogue might have been right in 1999—I’m skeptical, but maybe. 31 But even if he was right then, the point is not right now: Free Culture S32 is about the troubles the Internet causes even after the modem is turned R33 xiii <http://free-culture.org/get-it> 4TH PASS PAGES 14773_00_i-xviii_r9jm.qxd 2/10/04 3:46 PM Page xiv 1 off. It is an argument about how the battles that now rage regarding life 2 on-line have fundamentally affected “people who aren’t online.” There 3 is no switch that will insulate us from the Internet’s effect. 4 But unlike Code, the argument here is not much about the Internet 5 itself. It is instead about the consequence of the Internet to a part of 6 our tradition that is much more fundamental, and, as hard as this is for 7 a geek-wanna-be to admit, much more important. 8 That tradition is the way our culture gets made. As I explain in the 9 pages that follow, we come from a tradition of “free culture”—not 10 “free” as in “free beer” (to borrow a phrase from the founder of the free- 11 software movement 2), but “free” as in “free speech,” “free markets,” “free 12 trade,” “free enterprise,” “free will,” and “free elections.” A free culture 13 supports and protects creators and innovators. It does this directly by 14 granting intellectual property rights. But it does so indirectly by limit- 15 ing the reach of those rights, to guarantee that follow-on creators and 16 innovators remain as free as possible from the control of the past. A free 17 culture is not a culture without property, just as a free market is not a 18 market in which everything is free. The opposite of a free culture is a 19 “permission culture”—a culture in which creators get to create only 20 with the permission of the powerful, or of creators from the past. 21 If we understood this change, I believe we would resist it. Not “we” 22 on the Left or “you” on the Right, but we who have no stake in the 23 particular industries of culture that defined the twentieth century.
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