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Berkman Briefing: Rip, Mix, and Burn - Lessig's Case for Building a Free Culture

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In a low-lit auditorium at Harvard University's Radcliffe Institute for Advanced Study, Stanford Law Professor Lawrence Lessig leaned against the podium and clicked a remote control.  Above him, a video with Peanuts cartoons filled the screen—Linus sawed on a cello as a familiar chord progression began.  My baby don’t mess around/ Because she loves me so/ And this I know for sure…  The audience shifted uncomfortably.  OutKast?  Was he really playing OutKast in the middle of a speech at Radcliffe?  The characters danced in syncopation with the overlaid music, and by the time the Hey Ya! chorus started, disbelief had given way to laughter.  The cartoon was brilliant, bizarre, creative, and funny.

And illegal, Lessig added.  Under the current copyright regime, digital parodies like the OutKast-Peanuts hybrid are considered piracy.  In his speech, On Rebuilding a Free Culture, Lessig criticized this conception of copyright because it denies the public access to creative works and stifles the creative potential the Internet.

1. Making the Case

The story began in the 1800s – the early days of copyright law.  Usually, at this point in the lecture, heads would begin to nod.  But Lessig’s retelling of copyright history moved like a well-choreographed ballet.  His eye-candied slides explained that, originally, copyright law was intended to grant limited ownership rights for limited periods of time.

In the past 200 years, the idea of “limited” has slowly expanded to include full legal protections for 95-year terms.  These extensions have touched off an intellectual-property “land grab” as recording industries, publishers, and technology companies have fenced off larger amounts of content for longer periods of time.  (Prof. Terry Fisher gave a detailed explanation of the land-grab trend in his lecture, The Disaggregation of Intellectual Property in October, 2003.)

Meanwhile, technology of the past 30 years has moved in the opposite direction, liberating creativity and democratizing the opportunity to use and recombine digital content.  Almost anyone can be a creator – from parents recording videos of their children to amateur musicians sampling each other’s work.  The potential to build on others, to “rip, mix, and burn” the culture around us, is enormous.

According to Lessig, these two trends have left us with a choice: we can either embrace the potential that technology has created, or we can allow copyright expansion to suffocate the supply of rippable, mixable, and burnable content available in the public domain.

2. Spreading the Word

By the end of the presentation, nearly the entire audience had been converted to Lessig's Free Culture Movement.  Accept a copyright lockdown – No!  Advance the culture commons – Yes!  We believed in a future in which a 12-year-old girl can mix her violin solo with an acoustic guitar track she found in an online bazaar and an audience can watch a Peanuts cartoon, laugh first, and worry about copyright later.  We would heed Lessig’s call and re-imagine the cultural commons.

Leaving the auditorium, I noticed my sense of urgency fading quickly and the argument getting fuzzier in my head.  Why was 95 years outrageous?  Was 75 years outrageous, too?  Social movements depend on mobilizations and clear messages, and Lessig’s Free Culture cause seems to face three serious challenges in that vein.

First, the threat is hard to see.  If I hadn’t watched Lessig’s presentation, I wouldn’t know that copyright law denied most of us the chance to see a genius Peanuts parody.  Because the law considers these works piracy, we can’t see the cultural richness that would come from relaxing intellectual property restrictions.  Success of the Free Culture Movement requires not only that the public imagine this richness but also act on its behalf.

Action turns out to be complicated as well.  The cause doesn’t offer a corporate headquarters to picket, pamphlets to distribute, or ballot boxes to check.  In fact, its potential “enemies” are people who we were raised thinking of as “good guys:” movie makers, music makers, even Walt Disney himself.  Rather than malign these individuals or corporations, Free Culture urges its members to create alternatives – write blog entries, take photos, or record video clips.  By building the supply of creative material in the public domain with Creative Commons licenses, Free Culture undermines the forces of copyright lockdown and allows others to build on existing creative work.  It's an innovative spin on protest techniques, but also a potential barrier to those interested in joining.

The third difficulty is conveying the message.  Armed with slick computer toys, internet savvy, pirated video clips, a Yale law degree, and well-polished arguments for persuading audiences, Lessig can build the case against copyright in a smooth 50 minutes.  How can this message be distilled and rebottled for widespread consumption?  What’s the short pitch for the cause, and does it have to start with 1800s copyright law?

Stirring the masses will be an uphill battle, and Lessig explained that he’s not optimistic.  After making the argument in speeches, articles, two books, and even an appearance before the Supreme Court, his cause has not been adopted on a broad scale.  If only the argument were as memorable as the cartoon, maybe the troops would be easier to rally.

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Berkman Briefings

Berkman Briefings is a reading series sponsored by the Berkman Center that provides background information about major questions related to Internet policy, technology, and law. More