The Nature and Future of Creativity
by Lawrence Lessig
The author of the book, Lawrence Lessig, is a professor of law at Stanford Law School. He is a crusader for reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications. He is well known for representing Eldred in the case Eldred v Ashcroft where he fought in the US Supreme Court that the numerous extensions of copyright duration by the US Congress was unconstitutional. He explained the case in details in the book and admitted his mistake. He argued that the extension was unconstitutional because the Constitution has a clause on limited time of copyright, and that repeated extension would render copyright with no time limit. He regretted that he did not take the advice of his legal partners that the case should be presented to the Supreme Court highlighting the harm done to free culture owing to unending copyright. A mere academic explanation of the letters of the Constitution was not sufficient to impress the Supreme Court. As a result of such copyright extensions, the public domain of publications has ceased to expand since 1923.
With regard to property right, he cited the case of Causbys. The Causbys sued the US government of allowing airplanes to fly over their farm. The Causbys argued that the property right of their land would include the space above it, and that the government was trespassing on their property. In 1945, the Supreme Court ruled to uphold the decision of the Congress with a simple statement that “Common sense revolts at the idea”. As such, hundreds of years of property right was erased. Lessig likened this case to the numerous extensions of copyright duration. The unlimited copyright duration has led to all published materials: books, music, films, to be excluded from the public domain forever. Common sense should revolt at this idea as well. Free culture, free as in freedom not free lunch, is threatened as copyright could restrain all adaptations of published materials.
Lessig explained in details the origin, history and trend of the copyright issue. One topic which I am quite interested, and which deeply affects the Internet, is the downloading of files, in particular the peer-to-peer, P2P, file sharing technology which enables fast transmission and copying of digital files. A strong lobby comprising book publishers, music recording companies and movie companies are seeking strong enforcement power on the transmission of copyright materials on the Internet. The most advanced technology in the dissemination of knowledge is being restrained, as well as the free culture.
On file sharing, Lessig divided them into four types by the content shared:
Type A. Some people use sharing networks as substitutes for purchasing content. Although it is arguable whether everyone who takes content this way would actually have bought it if sharing didn’t make it available for free, there are some who would, thus depriving the legitimate sale of copyright content.
Type B. Some people use sharing networks to sample content before purchasing it. This is a kind of target advertising which is quite likely to succeed. The net effect of this sharing could increase the quantity of content purchased.
Type C. There are many who use sharing networks to get access to copyrighted content that is no longer sold. For content not sold, there is still technically a violation of copyright, although because the copyright owner is not selling the content anymore, the economic harm is zero.
Type D. There are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away.
Only type D sharing is clearly legal from the perspective of the law. If viewed from the perspective of economics, only type A sharing is harmful. Type B is illegal but beneficial to the owner. Type C is illegal yet good for the society. Any reform of the law and enforcement actions should take all these into account. They must avoid burdening type D even if it aims to eliminate type A. They should also consider the magnitude of type B and assess the actual harm done against the benefits gained. Instead of vigorously putting off all file sharing activities, Lessig suggested a model that could solve the problem and satisfy all parties. First, there should be a register of copyright materials. This would establish a clear legal status of copyright so that people wishing to use copyright materials could have a clear channel to seek permission. Second, there should be a definite duration of copyright to enable owners to receive their fair share of benefits. Third, such duration could be reasonably extended for those with continued value. Materials which their owners would wish to surrender copyright, or with expired copyright could enter the public domain for either free sharing or be used at a nominal cost. At present, these proposals are fiercely resisted by the interest parties who wish copyright to be forever.
Notwithstanding the impasse, there are clear signs that the present struggle of file copying and file sharing on the Internet is only temporary. The Internet is quickly moving into its next phase of fast connection speed and perpetual availability. Broadband connection is now widely used, and its speed is expected to be further enhanced. Fibre-optic connection and wireless connection are making Internet access more convenient and virtually always available. There are at present many websites offering online on-the-fly music listening, movie viewing and electronic book reading. There will soon be no need for a user to download content from sharing networks as content is readily available any time we need. The freedom of using such knowledge and thus enabling a free culture is what Lessig is looking forward to.