"Free Culture" Review Part 1

This is a first installment of some comments to Larry Lessig's new book "Free Culture". I have more to say later, but don't want to delay posting until I have everything worked out.

I will focus the time and number of words I want to use for this review on points where I don't agree with Lessig, even though that might be a difficult task, since anyone reading this blog will have noticed that my positions are rather similar to his. Numbers in brackets indicate the page or pages in the book I am referring to.

Even from a position rather close to Lessig I have found a lot of things to discuss. I present them in the order of importance I attach to them.

1. "Use Until Someone Complains"

This is one of Lessig's proposals for new legislation. He wants to go back to a system where copyright holders need to mark and register their works. However, in Lessig's view, the copyright should not be lost in the case of a violation of the marking requirement, but instead the copyright holder's position should be reduced. People could use unmarked content until someone complains.

I don't know if Lessig would advocate the same consequence for the failure of registrating a work.

However, I think this approach is interesting for two reasons.

One is the fact that I have proposed something similar with a "no sale doctrine". That proposal was to give the copyright holder a right to collect damages only if he is selling the work himself, since only in this case he is actually losing any economic advantage as a consequence of the copyright violation. The similarity lies in the fact that works with big commercial value that stay on the market could be expected to be registered and marked under Lessig's proposal, so they would enjoy the full range of available sanctions, while no one would bother to register and mark the remaining larger part of works without commercial value.

The other reason is that current American copyright law actually already adopts exactly this principle. There is still a voluntary registration system in American law. And 17 USC 412 states that statutory damages and attorney's fees can only be awarded when the work is registered or registration is made within three months after publication. That obviously means stronger sanctions for registered works. Exactly as Lessig calls for.

2. Piracy

Lessig devotes too much of his space to discussing the term "piracy".
Talking of "piracy" when discussing copyright is misleading. As Stallman has pointed out early on, a "pirate" is someone who robs and kills people on the high sea. Copyright violations are not violent, and they kill nobody.

Using that term is the equivalent of calling copyright holders "slave traders" (instead of "mafia", as Lessig does on pages 52 and 191).
A "slave trader" is someone who uses violence to take away the freedom of a human being. That is much more serious than using copyright law to take away the freedom of some part of culture. So calling a copyright holder "slave trader" would be misleading exactly in the same way as calling copyright violations "piracy" is.

Since Lessig gives us the right to write derivative works, I could take his text and turn it around. I could write a long chapter about "slave traders". Just to make that idea clear, let's start with the remarks about film on pages 53 to 55 as an example. In this derivative book, I would point out that the power of "slave traders" did not always rule over the world of movies. While the slave traders had a firm grip on movie production on the East Coast, Hollywood was far enough away to escape their enforcement. Some slaves made it to freedom in the west.

I leave it as an exercise for the reader to mirror the rest of the "Piracy" chapters. It's probable possible. And I think the result would be a stronger criticism of "copyright extremists". For just one more example take the "Piracy I" chapter at pages 63 to 66. The mirrored argument would be: All across the world a lot of people are violating the rights of the slave traders. They set ideas free against the law. This is just plain wrong, wrong, wrong, and there is no excuse for it.

Obviously, this argument against copyright violations gets weaker in the mirror version. However, my point here is that talking about "piracy" should be avoided, since the term is misleading and lacking in precision, exactly in the same way (with sides turned around) as the term "slave trader" would be.

To counter the "piracy" rhetoric of copyright holders, it would be perfectly enough to point to what Stallman said long ago, and then to refuse falling for that rhetorical weapon. All the points in the chapters about "pirates and "piracy" could have been made in the same way while using adequate terms as "copyright violation", or in the case of the part about the movie industry moving to California, "patent violation".

It is bad strategy for a book fighting against copyright extremism to use the misleading rhetorical weapons of your opponent again and again and again.

There are also some other terms I don't agree with. Lessig uses the word "war" frequently (pages 10, 11, 17, 18, 56, 73, 74, 120, 166, 169, 173, 179, 181, 183, 184, 194, 199, 200, 205, 207, 211, 254, 255, 262, 296, 300). If you want to see what a war is, look at the video footage of American airplanes bombing Iraqi kids for no particular reason. Or look at the Civil War on "free labor". The discussion about copyright protection is not a war, not by a long shot.

And calling one side (the copyright holders) "copyright warriors" (pages 18, 79, 83, 84, 124, 125, 126, 128, 168, 255, 276) comes with a logical fallacy built in. If you talk about a war in this context, obviously both sides would be warriors. "Enemies of freedom" would do just fine, if you want to use some colorful rhetoric to describe people with extremist copyright inflation agendas.

3. The tiny fraction

In the chapter about the Eldred case, Lessig says that only a "tiny fraction" of works have a continuing commercial value (page 225).

But copyright protection is not limited to that tiny fraction. All other works are burdened as well.

This, in Lessig's opinion, is a reason to call for shorter copyright protection terms.

I think it would have been of interest for Lessig to note that exactly the opposite argument was made by Mark Twain about a hundred years ago. Twain called for perpetual copyright. He did not believe in the wisdom of taking away an author's right without compensation. And the reason he gave was exactly the one Lessig gives here: Since there are only extremely few works that have any commercial value left at the end even of the much shorter protection terms one hundred years ago, there is not much point in requiring the law to take away the remaining value in these extreme exceptions. Twain illustrated his point by comparing it to a bill limiting families to twenty-two children by one mother, something just about as rare as a copyright with commercial value left after 42 years.

I disagree with both Lessig and Twain on this point. I think it is exactly the tiny fraction that is most important.

Of all the works created and protected by copyright, only a tiny fraction has any commercial value at the time of creation. And only a tiny fraction of that tiny fraction has any commercial value after a hundred years have passed (which might be the date of 70 years after the death of the author in many cases). All the effort associated with granting a monopoly right to the copyright holder makes sense only for that tiny fraction of works with commercial value.

But both in terms of commercial value and in terms of cultural influence, these works tend to be most important. How many dollars is the copyright for Micky Mouse worth?

And exactly because Twain's works and Disney's works have so much dollar value and so much cultural influence, any discussion of copyright terms should be based on what is the right compromise for the rich and famous, not what might be right for the obscure orphans.

Lessig and Twain come to opposite conclusions from the same observation. Lessig would probably explain that by pointing out the development of the Internet. Since it is so cheap to publish with the Internet, more works can be published now than a hundred years ago. So the restrictions on obscure orphans are a much larger burden now. Many orphans could expect being adopted by someone like Mr. Eldred if they were free from these burdens.

It is right to say that the costs of publishing on the Internet are dramatically lower than the costs of publishing a book in Twain's world.
That means that the tiny fraction of works with commercial value will become less tiny. Whatever income can be achieved by publishing on the Internet needs to be only very small to cover the costs and leave a profit. Or people like Mr. Eldred might adopt orphans for the pure pleasure of spreading culture if there is only a small investment necessary to do so.

That probably means that the tiny fraction has become much larger. Twain's original argument might have lost its empirical base.
But if that is so, my position that copyright law needs to base its protection term on what is right for works worth publishing to someone becomes all the more necessary.

4. The Meaning of the Title

is ambigious. It is well known that "free software" can mean free as in beer or free as in speech. The same is true here. But there is one more way to understand the title. "Free" might be a verb, so the title might have the meaning "setting culture free".

Lessig explains in the preface that he is talking about free culture with "free" as in free speech.

But he also gives some advice on how to set culture free at the end of the book, so the "free" in the title might actually be read as a verb as well.

However, I had actually expected to find a stronger parallel to the free labor movement. Lessig said last year that he wanted to "evoke a link" to this. I can't find "free labor" anywhere in the book now, so that doesn't seem to have worked out as announced at the time.

5. Minor points on style and precision

(88) "(However convincing the claim that ...)"

This should be: (However convincing the claim _is_ that ...)

(192) "The effect is to produce an overregulated culture, just as the
effect of too much control in the market is to produce an overregulated-regulated market."

I don't understand the term "overregulated-regulated". This should probably just be "overregulated".

(232) "The economists' brief was signed by seventeen economists, including five Nobel Prize winners, including Ronald Coase, James Buchanan, Milton Freedman, Kenneth Arrow, and George Akerlof."

The second "including" seems to be redundant at best. I understand that Lessig is listing all five Nobel prize winners by name here.

However, writing "including" twice indicates that the five people listed up are at least partially different from the five Nobel prize winners.

Probably the text should lose the second "including".

(185): "Can common sense recognize the absurdity in a world where the maximum fine for downloading two songs off the Internet is more than the fine for a doctor's negligently butchering a patient?"

Damages are not "fines".

(146) "Once a video was in the market-place, the "first-sale doctrine" would free the seller to use the video as he wished,"

This wording is unfortunate. Obviously, the "first-sale" doctrine doesn't give the "seller" any freedom, but the buyer. In this case, the buyers are sellers to third parties (consumers) themselves, which is why they are referred to as "sellers" here. However, in the context of the "first-sale doctrine" this is confusing. That confusion could be avoided by writing "the 'first-sale doctrine' would free the buyer of the video to use it as she wished, including ..."

(184) "Technology has thus given us an opportunity to do something with culture that has only ever been possible for individuals in small groups ..."

I would prefer: "that has traditionally only been possible". In contrast, "only ever" seems to be confusing. But I am not sure about this.

"Free Culture" Wiki

Aaron Swartz has set up a Wiki site for Larry Lessig's latest book here.

I just did a minor edit there of this line on page 88 in the book:

(However convincing the claim _is_ that ...)

Unknown Copyright Owners

The Japanese copyright law gives a compulsory license in the case that the copyright owner can not be found because he is unknown, or for other reasons, see Article 67.

It seems that this system was used widely in World War II, when it was rather difficult to "find" western copyright owners. That difficulty was partly due to the fact that the Japanese drove the German national Dr. Plage out of Japan with some new regulations. He had represented European copyright holders in Japan in the 1930s and was feared and hated by Japanese musicians and translators as "whirlwind Plage".

I googled a bit around and found not much similar in American copyright law. There are some references to unknown copyright holders in 37CFR253.9 and 37CFR260.7

All this might be one efficient way to deal with the problem of "orphaned works". Lessig wants the US to go back to a registration system for copyright to solve that problem.

The Japanese compulsory license does it the other way round. Not the authors shall be subject to formalities forbidden by Article 5 of the Berne Convention, but the person or institution interested in using the work shall need to clear their use with an institution acting as a proxy for the unknown copyright holder. In the case of the Japanese law that is the Commissioner of the Agency for Cultural Affairs.

Lessig's proposal is clearly in violation of the Berne Convention. Of course, it might be unrealistic expecting Americans to obey any kind of treaty. And authors who lose their rights guaranteed in Article 5 of the Convention to some new legislation Lessig calls for can't sue directly based on the Convention in the U.S., since the 1988 Berne Convention Implementation Act states that the Convention is not self-executing and no actions can be brought pursuant to the provisions of the Convention itself.

So violating the Berne Convention might not be a big deal, at least in the internal political discussion in America. However, other countries will take note of such violation and feel free to dump their respective obligations to the U.S. as well.

So maybe it would be a good idea after all to pay some attention to the Berne Convention.

And in that case, a system like the Japanese compulsory license might be an interesting alternative strategy to "save the orphans".