Today's content owners are yesterday's pirates

I posted this review of Larry Lessig's book Free Culture to Amazon.com:

Lessig has written a very clear and entertaining book about copyright, piracy, and culture, filled with lots of real-world examples to make his points. The book covers major events in the history of copyright in the United States (from its beginnings in English common law and the UK Statute of Anne) in order to show how its meaning has changed, and how those who are making accusations of piracy today were the pirates of yesterday. (Jessica Littman's book, Digital Copyright, is a nice complement to this book, covering the history of copyright in greater depth.) Lessig makes a strong case that the direction of copyright, giving greater control over content to a very small number of owners than has ever existed, is eroding the freedom that we've historically had to preserve and transform the elements of our culture.

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.

This book is available online at no charge. http://www.free-culture.cc/freecontent/