CONNECTICUT LIBRARIES
January 2005, Vol. 47, No. 1
Ever wonder why brand-and-new cars don't come with MP3-CD players? Ever wonder why Internet radio, unfettered by geography, hasn't proliferated? Lawrence Lessig's new book provides answers to these and other creativity questions, but most of the answers are not ones librarians will want to hear. For Lessig, new technology, new copyright laws, and a new, consolidated media combine to stifle our culture's capacity for creativity and innovation. Instead of a "free culture" where society limits some intellectual property rights in order to encourage creativity, we are heading towards a "feudal culture" where content providers and the government use a property fundamentalism to protect the pecuniary interests of a few major content providers.Rejecting charges of liberal bias, Lessig reminds us that property fundamentalism is not a part of our history or our Constitution. From the beginning, the U.S. government recognized that creative property is a different form of property. Copyright law should be used to protect the rights of creators without stifling the environment of creativity that is a hallmark of a democratic society. For that reason, the maximum term of copyright was never more than 56 years. Thanks to recent copyright term extensions, however, the current average term of copyright is an incredible 95 years.
You may remember Lessig as the attorney who argued before the Supreme Court that these recent copyright term extensions were unconstitutional. ALA and a broad coalition of organizations, left and right, supported his case. Lessig lost, and his explanation why provides a fascinating, and troubling, look at how the Supreme Court decides its cases.
Besides copyright extension, Lessig worries that recent responses to new technology differ from our past practices. When technology changes, it is not the responsibility of the government or its copyright law to protect one way of doing business over another. The broadcast industry survived the advent of the VCR, for example, despite copyright worries regarding this new technology.
But one new technology has produced a far more frenzied response from the content providers and their supporters in Congress. The proliferation of digital content on the Internet brought us the Digital Millennium Copyright Act (DMCA) of 1998. Because of the ease of copying digital material, content providers convinced Congress that copyright law no longer should remain technology-neutral. By using new digital rights management technologies in new products like e-books, publishers can control the copying of any part of a digital work. This helps protect copyright, but it also makes it more difficult for readers to execute their rights under fair use and first sale doctrines. This essentially replaces the copyright law with a copyright code, a code Congress chose to protect with the DMCA. The DMCA makes it illegal to create or use a device that circumvents the code on access to digital works, even if the device is created for legal uses. Recent court cases have limited the scope of this copyright law. Nevertheless, with the help of the DMCA, content providers have shown how serious they are about using technology to pursue anyone using copying devices on digital material. The music industry, for example, has sued thousands of Americans for alleged copyright infringement because they copied music over the Internet. Lessig believes the first casualty of this wholesale war on piracy will be our culture's capacity for creativity and innovation.
Lessig gives examples of this dilemma. We don't have MP3-CD players in cars because even the automobile companies are afraid of potential litigation from the music industry should these devices appear to encourage illegal copying. We don't have a proliferation of Internet radio stations because Congress has slapped prohibitive rules and fees on these stations in order to protect the current broadcast industry. And, surely there is a way to compensate artists and musicians fairly, without labeling as criminals the 43 million members of our population who share music. Lessig thinks there are ways to address these problems. Our interest should not be in shielding industries from the competition brought on by new technology. Our interest should be in creating a system fair to creators and users alike.
Perhaps Lessig's best argument for revamping copyright law is his call to expand content in the public domain. Currently, there is a host of copyright-protected material that no one is trying to protect and which no one essentially may use. Many copyright holders would willingly allow free use of their material, but because there is no copyright registration process, users often find it too difficult to identify and locate the owners in order to ask for permission. For instance, there is a vast quantity of important film material that could be digitized, but the gargantuan task of obtaining copyright permission makes this impossible.
Lessig advocates mandatory copyright renewal after 50 years as an effective compromise solution to this problem. Anything not renewed for copyright at this time, with a small fee paid, would automatically enter the public domain (See eldred.cc/ea_faq.html). He also encourages the use of voluntary legal vehicles, such as the Creative Commons, which offers a range of flexible protections and freedoms for authors and artists (see creativecommons.org).
Lessig's ideas resonate with librarians, who see the potential of the Internet and who are concerned that the government has forsaken its responsibility to encourage access to information as it encourages the use of new technology. At the very least, librarians should be impressed when attorney Lessig warns that a society concentrating its attention on property protection will only create a world of more lawyers and fewer librarians.
Tom Newman is the Assistant Director of the
Connecticut State Library's Middletown Library Service Center.
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