Free Culture

誰綁架了文化創意？：如何找回我們的「自由文化」
Lawrence Lessig. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.

INTRODUCTION
1. My hope is to push this common sense along. I have become increasingly amazed by the power of this idea of intellectual property and, more importantly, its power to disable critical thought by policy makers and citizens. There has never been a time in our history when more of our "culture" was as "owned" as it is now. And yet there has never been a time when the concentration of power to control the uses of culture has been as unquestioningly accepted as it is now.
2. The two sections set up the core claim of this book: that while the Internet has indeed produced something fantastic and new, our government, pushed by big media to respond to this "something new," is destroying something very old.Rather than understanding the changes the Internet might permit, and rather than taking time to let "commonsense" resolve how best to respond, we are allowing those most threatened by the changes to use their power to change the law—and more importantly, to use their power to change something fundamental about who we have always been.

Part One: PIRACY
1. 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: 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. The taking of something of value from someone else without permission is wrong. It is a form of piracy.
2. 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.

Chapter 01— Creator
1. Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less.Ours was a free culture. It is becoming much less so.

Chapter 02— Mere Copyists
1. But though we could imagine this system of permission, it would be very hard to see how photography could have flourished as it did if the requirement for permission had been built into the rules that govern it. Photography would have existed. It would have grown in importance over time. Professionals would have continued to use the technology as they did—since professionals could have more easily borne the burdens of the permission system. But the spread of photography to ordinary people would not have occurred. Nothing like that growth would have been realized. And certainly, nothing like that growth in a democratic technology of expression would have been realized.
2. But democracy has never just been about elections. Democracy means rule by the people, but rule means something more than mere elections. In our tradition, it also means control through reasoned discourse.

Chapter 03— Catalogs

Chapter 04— Pirates
1. The film industry of Hollywood was built by fleeing pirates. Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison. These controls were exercised through a monopoly "trust," the Motion Pictures Patents Company, and were based on Thomas Edison's creative property—patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded.
2. The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the law to make sure that composers would be paid for the "mechanical reproductions" of their music. But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law.
3. American law ordinarily calls this a "compulsory license," but I will refer to it as a "statutory license." A statutory license is a license whose key terms are set by law.After Congress's amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute.
4. It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they "pirated."In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner. The price was set by law, so that the broadcasters couldn't exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a "piracy" of the value created by broadcasters' content.

Chapter 05— Piracy
1. For (1) like the original Hollywood, p2p sharing escapes an overly controlling industry; and (2) like the original recording industry, it simply exploits a new way to distribute content; but (3) unlike cable TV, no one is selling the content that is shared on p2p services. These differences distinguish p2p sharing from true piracy. They should push us to find a way to protect artists while enabling this sharing to survive.
2. This compromise, like the compromise affecting records and player pianos, served two important goals—indeed, the two central goals of any copyright legislation. First, the law assured that new innovators would have the freedom to develop new ways to deliver content. Second, the law assured that copyright holders would be paid for the content that was distributed. One fear was that if Congress simply required cable TV to pay copyright holders whatever they demanded for their content, then copyright holders associated with broadcasters would use their power to stifle this new technology, cable. But if Congress had permitted cable to use broadcasters' content for free, then it would have unfairly subsidized cable.Thus Congress chose a path that would assure compensation without giving the past (broadcasters) control over the future (cable).

Part Two: PROPERTY

Chapter 06— Founders

Chapter 07— Recorders
1. In theory, fair use means you need no permission. The theory therefore supports free culture and insulates against a permission culture. But in practice, fair use functions very differently. The fuzzy lines of the law, tied to the extraordinary liability if lines are crossed, means that the effective fair use for many types of creators is slight. The law has the right aim; practice has defeated the aim.

Chapter 08— Transformers
1. This privilege becomes reserved for two sorts of reasons. The first continues the story of the last chapter: the vagueness of "fair use." Much of "sampling" should be considered "fair use." But few would rely upon so weak a doctrine to create.That leads to the second reason that the privilege is reserved for the few: The costs of negotiating the legal rights for the creative reuse of content are astronomically high. These costs mirror the costs with fair use: You either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don't have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers—again a privilege, or perhaps a curse, reserved for the few.

Chapter 09— Collectors
1. Technologists have thus removed the economic costs of building such an archive. But lawyers' costs remain. For as much as we might like to call these "archives," as warm as the idea of a "library" might seem, the "content" that is collected in these digital spaces is also someone's "property." And the law of property restricts the freedoms that Kahle and others would exercise.

Chapter 10— Property
1. We have always treated rights in creative property differently from the rights resident in all other property owners. They have never been the same. And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create. Creativity depends upon the owners of creativity having less than perfect control.
2. While the contours of copyright today are extremely hard to describe simply, in general terms, the right covers practically any creative work that is reduced to a tangible form. It covers music as well as architecture, drama as well as computer programs. It gives the copyright owner of that creative work not only the exclusive right to "publish" the work, but also the exclusive right of control over any "copies" of that work. And most significant for our purposes here, the right gives the copyright owner control over not only his or her particular work, but also any "derivative work" that might grow out of the original work. In this way, the right covers more creative work, protects the creative work more broadly, and protects works that are based in a significant way on the initial creative work.
3. "Copies." That certainly sounds like the obvious thing for copyright law to regulate. But as with Jack Valenti's argument at the start of this chapter, that "creative property" deserves the "same rights" as all other property, it is the obvious that we need to be most careful about. For while it may be obvious that in the world before the Internet, copies were the obvious trigger for copyright law, upon reflection, it should be obvious that in the world with the Internet, copies should not be the trigger for copyright law.More precisely, they should not always be the trigger for copyright law. This is perhaps the central claim of this book, so let me take this very slowly so that the point is not easily missed.My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically applies, because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law.
4. But when we see how dramatically this "property" has changed—when we recognize how it might now interact with both technology and markets to mean that the effective constraint on the liberty to cultivate our culture is dramatically different—the claim begins to seem less innocent and obvious. Given (1) the power of technology to supplement the law's control, and (2) the power of concentrated markets to weaken the opportunity for dissent, if strictly enforcing the massively expanded "property" rights granted by copyright fundamentally changes the freedom within this culture to cultivate and build upon our past, then we have to ask whether this property should be redefined.
5. In 1790, the law looked like this:
Commercial publish: copyright
Commercial transform: free
Noncommercial publish: free
Noncommercial transform: free
6. By the end of the nineteenth century, the law had changed to this:
Commercial publish: copyright
Commercial transform: copyright
Noncommercial publish: free
Noncommercial transform: free
7. Thus by 1975, as photocopying machines became more common, we could say the law began to look like this:
Commercial copy: copyright
Commercial copy: copyright
Noncommercial publish: copyright/free
Noncommercial transform: free
8. But the consequence of the emergence of digital technologies, especially in the context of a digital network, means that the law now looks like this:
Commercial copy: copyright
Commercial copy: copyright
Noncommercial publish: copyright
Noncommercial transform: copyright
9. The property right that is copyright is no longer the balanced right that it was, or was intended to be. The property right that is copyright has become unbalanced, tilted toward an extreme. The opportunity to create and transform becomes weakened in a world in which creation requires permission and creativity must check with a lawyer.

Part Three: PUZZLES

Chapter 11— Chimera

Chapter 12— Harms
1. Judges and lawyers can tell themselves that fair use provides adequate "breathing room" between regulation by the law and the access the law should allow. But it is a measure of how out of touch our legal system has become that anyone actually believes this. The rules that publishers impose upon writers, the rules that folm distributors impose upon filmmakers, the rules that newspapers impose upon journalists—these are the real laws governing creativity. And these rules have little relationship to the "law" with which judges comfort themselves.

Part Four: BALANCES

Chapter 13— Eldred

Chapter 14— Eldred II
1. Indeed, many recognized the obvious benefit of the registration requirement. For one of the hardest things about the current system for people who want to license content is that there is no obvious place to look for the current copyright owners. Since registration is not required, since marking content is not required, since no formality at all is required, it is often impossibly hard to locate copyright owners to ask permission to use or license their work. This system would lower these costs, by establishing at least one registry where copyright owners could be identified.

CONCLUSION
1. A sensible patent policy could endorse and strongly support the patent system without having to reach everyone everywhere in exactly the same way. Just as a sensible copyright policy could endorse and strongly support a copyright system without having to regulate the spread of culture perfectly and forever, a sensible patent policy could endorse and strongly support a patent system without having to block the spread of drugs to a country not rich enough to afford market prices in any case. A sensible policy, in other words, could be a balanced policy. For most of our history, both copyright and patent policies were
balanced in just this sense.

AFTERWORD
1. As journals become electronic, however, the publishers are demanding that libraries not give the general public access to the journals. This means that the freedoms provided by print journals in public libraries begin to disappear. Thus, as with privacy and with software, a changing technology and market shrink a freedom taken for granted before.
2. The line between the public domain and protected content must be kept clear. Lawyers like the fuzziness of "fair use," and the distinction between ideas" and "expression." That kind of law gives them lots of work. But our framers had a simpler idea in mind: protected versus unprotected. The value of short terms is that there is little need to build exceptions into copyright when the term itself is kept short. A clear and active "lawyer-free zone" makes the complexities of "fair use" and "idea/expression" less necessary to navigate.
3. But the legal system doesn't work. Or more accurately, it doesn't work for anyone except those with the most resources. Not because the system is corrupt. I don't think our legal system (at the federal level, at least) is at all corrupt. I mean simply because the costs of our legal system are so stonishingly high that justice can practically never be done.