Free Culture: The Nature and Future of Creativity (Anglais) Broché – 22 février 2005
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Else worked on a documentary that I was involved with. At a break, he told me a story about the freedom to create with film in America today.
In 1990, Else was working on a documentary about Wagner’s Ring Cycle, and the story was to be told by the stagehands at the San Francisco Opera. Stagehands are a particularly funny and colorful aspect of opera. During a show, they hang out below the stage in the grips’ lounge and in the lighting loft. They are a perfect contrast to the art on the stage.
In the course of one of these performances, Else was shooting some stagehands playing checkers. In the corner of the room, there was a television set. Playing on the television set, as the stagehands played checkers, as the San Francisco Opera played Wagner, was The Simpsons. And as Else judged it, this touch helped capture the oddness of the scene.
Years later, when he finally got funding to complete the film, Else attempted to clear the rights for those few seconds of The Simpsons. Of course, those few seconds are copyrighted and, of course, to use copyrighted material you need the permission of the copyright owner.
Else knows Matt Groening, so he called Groening’s office to get permission. Groening said, “Sure, use the shot.” The shot was a four-and-a-half-second image on a tiny television set in the corner of the room. How could it hurt? Groening was happy to have it in the film, but he told Else to contact Gracie Films, the company that produced The Simpsons.
Gracie Films was okay with it, too, but they, like Groening, also wanted to be careful. So they told Else to contact Fox, Gracie’s parent company. So Else called Fox and told them about the film and told them about the four-and-a-half-second clip in the corner of the one shot. Matt Groening had already given permission, Else said. He was just confirming the permission with Fox.
Then, as Else told me, “two things happened. First we discovered…; that Matt Groening doesn’t own his own creation—or at least that someone [at Fox] believes he doesn’t own his own creation.” And second, Fox “wanted ten thousand dollars as a licensing fee for us to use this four and a half seconds of…; entirely unsolicited Simpsons, which was in the corner of the shot.”
Else was certain there was a mistake. He worked his way up to the someone he thought was a vice president for licensing, Rebecca Herrera. And he said to her, “There must be some mistake here…;.We’re asking for your educational rate on this.” That was the educational rate, Herrera told Else. A day or so later, Else called again to confirm what he had been told.
“I wanted to make sure I had my facts straight,” he told me he told her. “Yes, you have your facts straight,” she said. Ten thousand dollars to use the clip of The Simpsons in the corner of a short in a documentary film about Wagner’s Ring Cycle. And then, astonishingly, Herrera told Else, “And if you quote me, I’ll turn you over to our attorneys.” As an assistant to Herrera told Else later on, “They don’t give a shit. They just want the money.”
Else didn’t have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera. To repeat that reality was beyond the documentary filmmaker’s budget. And thus, at the very last minute before the film was to be released, Else digitally replaced the four and a half seconds of The Simpsons with a clip from another film he had worked on—The Day After Trinity. Only problem was that when Else shot the sequence at the San Francisco Opera in 1990, The Day After Trinity had not yet been made.
We live in a free society—built between the bulwarks of free speech and the prosperity of a free market. Yet the culture of that culture—once a free culture—is changing. We are moving from this free culture, where artists and creators and critics could build easily upon our past, to a permission culture, where the right to use what is all around us depends upon the permission of an increasingly small few.
This is a profound change in our culture. It is the product of changing law and changing technology. Unless it is reversed, it will remake who we are and how we build our culture.
Revue de presse
"An entertaining and important look at the past and future of the cold war between the media industry and new technologies." —Marc Andreessen, cofounder of Netscape
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Lessig begins by describing how the notion of a real property right for land extending into the sky to "an indefinite extent, upwards" became a real rather than theoretical issue with the invention of the airplane. In 1945, the Causbys, a family of North Carolina farmers, filed a suit against the government for trespassing with its low-flying planes, and the Supreme Court declared the airways to be public space. This example shows how the scope of property rights can change with changes of technology, in this particular case resulting in an uncompensated taking from private property owners, yet leading to enormous innovation and the development of a new industry and form of transportation. He follows this with the example of the development of FM radio, which was intentionally back-burnered by RCA and then hobbled by government regulation at RCA's behest in order to protect its existing investment in AM radio. This example shows how powerful interests can stifle technological change through its ownership of intellectual property (in this case, the patents regarding FM radio).
He then discusses how intellectual property laws have developed in the U.S., pointing out that Walt Disney's Mickey Mouse made his talking picture debut in the movie "Steamboat Willie" (he had earlier appeared in a silent cartoon, "Plane Crazy"), which was a parody of Buster Keaton's "Steamboat Bill." Many of Disney's characters and stories were taken directly from the previous work of others, such as the Brothers Grimm--works in the public domain, freely available for such copying. As new forms of media have been created, they have borrowed from previous forms. Today, however, the creators of content who have borrowed from their predecessors have successfully changed the rules so that their successors cannot borrow from them, both by extending the term and scope of copyright protection and by developing technologies that have greatly reduced the ability of successors to borrow or re-use content. The specific rules are completely inconsistent, based on the political power of the relevant parties at the time the laws were changed. When Edison developed the ability to record sounds, including recording music written by others, copyright law was changed to provide for compulsory licensing for a fee paid to the composer. With radio broadcasting, the fee still goes to the composer, but not to the recording artist. But put that same radio broadcast on the Internet, and now fees must be paid to both the composer and the recording artist.
Where there used to be a sea of unregulated uses of copyrighted material containing a small island of restricted uses (with shores of fair use), there is now a vast continent of restricted uses, a stark cliff of fair use, and a tiny channel of unregulated uses. Lessig shows a table on pp. 170-171 showing commercial and noncommercial uses and the rights to publish and transform for each. In 1790, copyright only governed publication rights for commercial uses, the other three cells of the table being free. At the end of the 19th century, publication and transformation for commercial use was governed by copyright, while noncommercial use was free. The law was changed to govern copies, including much noncommercial use. Today, all four cells of the table are governed by copyright.
Lessig discusses Eric Eldred's attempt to defend the right to transform public domain works into electronic versions by fighting Congress's continuing extensions of the term of copyright in the face of the Constitution's restriction to "limited Times," and how the case was lost at the U.S. Supreme Court to inconsistent reasoning from the conservative justices who failed to even address the commerce clause argument and the precedent they set in Lopez v. Morrison case. This is a wonderfully written, persuasive, entertaining, and dismaying book. It deserves to be widely read and understood, so that ultimately intellectual property law in the U.S. will be reformed.
Lessig does a formidable job of making the issue come alive for both experts and laymen with his use of anecdotes that clearly illustrate how the ever-growing term and scope of copyright have stifled creativity and shrunken the portion of our culture in the public domain. He shows how the content industry is trying to redefine IP as the equivalent of tangible property, when it is not and has never been, and how that industry has manipulated Congress and the Courts to get closer to its goal.
If you followed the Eldred v. Ashcroft case (like I did; I was lucky to be at oral argument before the Supremes), you'll want to pick up this book for Lessig's inside account. Most of it is a mea culpa for not realizing that the Court didn't want a constitutional argument, but a consequentialist one. I'm not sure this would have made a difference. The Court's right, who, like Lessig, I thought would chime in for a strict reading of what is clear language of "limited times" in the Copyright Clause, must have had some special reason for turning their backs on their originalist rhetoric and I doubt that a political argument would have changed their minds. I still can't understand what that reason might be, and I refuse to believe it's just the dead hand of stare decisis that gave Scalia pause. Lessig is obviously very upset at that Justice; while he does mention having clerked for Judge Posner, Lessig doesn't mention in his bio (neither in the dust jacket nor the back pages of the book) that he clerked for Scalia in 1990-91.
One curious thing about the book is that throughout it Lessig implies that he is a leftist and that the ideas he is advocating are leftist. He patronizingly writes at a couple of points that he would be surprised if a person on the right had read that far. I think he is selling himself-and conservative readers-short. In fact, there is very little in the book incompatible with a conservative or libertarian free-market viewpoint. Private interests using the power of the state to distort the market and quash their competitors, and an originalist Jeffersonian interpretation of the Constitution as the response are very conservative themes indeed.
But it's not all agreement. I, like most free marketeers, will object to parts of Free Culture. Foremost among them are Lessig's concerns about media concentration. The fact is that there are more options today in television and radio than 20 years ago, and the the explosion of Internet sites and blogs, which Lessig spends most of the book lauding, belies the idea that news can be controlled. And it is interesting that Lessig seems to understand this. He says that he has seen concentration only as market efficiency in action, and that only recently has he 'begun to change his mind'. His skepticism is reflected in the fact that he only dedicated a small section (7 pages) to the issue. Another point of contention will be some of the solutions he proposes. While I applaud the idea of shorter terms that must be renewed with payment of a token fee, compulsory licensing and fees paid out by the government out of general revenues is beyond the pail. Won't such mechanisms be ripe for corporate manipulation as well?
Still, small quibbles aside, this book beautifully puts the IP issue in perspective. Everyone is touched by copyright whether they know it or not. This book shows us how the future of our culture is a dark one unless we change course soon.
This book is recommended for all, and is a must for all law students and lawyers.
It's historical research sets the foundation for a look at things to come on the Internet as new technology threatens established media, much the same way as Lessig points out it did in previous centuries. The pirates of yesteryear are the corporations of today who threaten the pirates of today. He is humble as he describes his defeat in the US Supreme Court and proactive as he puts some suggestions forward to resolve the current crisis affecting copyright on the Net.
Couldn't put it down and have already purchased Code 2 by the same author.