Subtitle: How big media uses technology and the law to lock down culture and control creativity
The is Lawrence Lessig’s new book. He has a PDF version of it online at the Stanford Site.
He is one of my heroes, his books always turn me on. A few months ago, he got to argue this general idea before the Supreme Court. He got shot down in flames. I'm glad to see he is back on is feet, and writing again. This is a thorny subject: copying of digital versions of music on the Internet. But he deals with it gracefully - and logically. He is a professor of law at Stanford. If you can, spend a little time reading it one the Internet - and if you have more time, and more money, buy the book. I think I will.
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There’s no doubt that “piracy” is wrong, and that pirates should be punished. But before we summon the executioners, we should put this notion of “piracy” in some context. For as the concept is increasingly used, at its core is an extraordinary idea that is almost certainly wrong. The idea goes something like this:
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Creative work has value; whenever I use, or take, or build upon the creative work of others, I am taking from them something of value. Whenever I take something of value from someone else, I should have their permission.
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The taking of something of value from someone else without permission is wrong. It is a form of piracy. This is the perspective that led a composers’ rights organization, ASCAP, to sue the Girl Scouts for failing to pay for the songs that girls sang around Girl Scout campfires.
But the “if value, then right” theory of creative property has never been America’s theory of creative property. It has never taken hold within our law. Instead, in our tradition, intellectual property is an instrument. It sets the groundwork for a richly creative society but remains subservient to the value of creativity. The current debate has this turned around.We have become so concerned with protecting the instrument that we are losing sight of the value.
The source of this confusion is a distinction that the law no longer takes care to draw—the distinction between republishing someone’s work on the one hand and building upon or transforming that work on the other. Copyright law at its birth had only publishing as its concern; copyright law today regulates both.
The burden of this law now vastly outweighs any original benefit—certainly as it affects noncommercial creativity, and increasingly as it affects commercial creativity as well. Thus, as we’ll see more clearly in the chapters below, the law’s role is less and less to support creativity, and more and more to protect certain industries against competition. Just at the time digital technology could unleash an extraordinary range of commercial and noncommercial creativity, the law burdens this creativity with insanely complex and vague rules and with the threat of obscenely severe penalties.
We may be seeing, as Richard Florida writes, the “Rise of the Creative Class.” Unfortunately, we are also seeing an extraordinary rise of regulation of this creative class.
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