Legal Battle Over Copyright-Intellectual Property Gets Hip

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity , by Lawrence Lessig. Penguin Press, 368 pages, $24.95.

In a profession dominated by nerds, intellectual property (I.P.) lawyers have long served the useful role of letting other lawyers feel that at least they’re not the nerdiest. It’s perhaps not surprising, then, that in recent years we’ve seen a number of prominent I.P. scholars aggressively reinvent themselves as more accessible public intellectuals. The most notable example of this is Stephen Carter, who went from soft-spoken I.P. professor to Presidential adviser (on bioethics), then on to highly paid best-selling novelist.

The Internet boom has provided a more obvious and systematic path for scholars to pull themselves out of the I.P. ghetto and contribute to a debate of interest and relevance to a broad audience: one day cocooned in the dry arcana of copyright, trademark and patent law, the next spreading your wings as a new breed of legal superhero, the cyber-lawyer. Lawrence Lessig, founder of the Stanford Center for Internet and Society and chair of something called the Creative Commons project, is probably the most prolific and influential of the I.P. scholars newly blessed with Internet street cred. Free Culture, Mr. Lessig’s latest book, is a provocative and engaging polemic against The Man for trying to keep down his peeps hanging on the Net.

Free Culture comes in two distinct parts. I will focus here on the longer first part, which is a highly entertaining but utterly unconvincing argument for a fundamental rethinking of how we regulate creative content in the Internet era. The second part, which seems like an afterthought, is a poignant chronicle of Mr. Lessig’s unsuccessful effort to have the latest legislative extension of copyright protections declared unconstitutional.

Mr. Lessig weaves together a tapestry of charming anecdote, history, and economic and legal theory to lead us to his conclusion that copyright regulation must be scaled back dramatically. His core argument is that the combined impact of three factors-“changing law, concentrated markets, and changing technology”-cries out for what he euphemistically refers to as certain “adjustments” to the law that would, in his view, “restore the balance that has traditionally defined” the relationship between the legal protections of creative property and the ability of anyone to engage in unfettered creativity.

Mr. Lessig is on firmest ground with respect to the “changing law” element of his thesis. During the first 150 years of our history, the maximum copyright term was extended only twice (from 28 years to 42 to 56); since 1962, however, Congress has extended the terms of existing copyrights 11 times to the current 95 years-which does seem like an awfully long time. Particularly compelling is Mr. Lessig’s argument that any retroactive extension of copyrights-as many of the recent extensions have been-serves no useful social purpose.

Mr. Lessig is on shakiest ground when he tries to demonstrate that element of his argument which he concedes is most critical to his overall thesis: “In my view, all of these [other] changes would not matter much if it weren’t for … [t]he change in the concentration and integration of media [over] the past twenty years.” Here, instead of any kind of systematic argument, Mr. Lessig offers random anecdotes and statistics, some of which actually undercut his position: “There are twenty major newspaper publishers in the United States. The top ten film studios receive 99 percent of all film revenue. The ten largest cable companies account for 85 percent of all cable revenues. This is a market far from the free press the framers sought to protect.” That adds up to 40 major media voices (actually 38, since one studio is also a newspaper publisher and another studio is also a cable company), and that doesn’t include radio (satellite and terrestrial) and television broadcasters, cable programmers, multichannel satellite services or Internet content providers. Ironically, Mr. Lessig repeatedly cites Intel, a company with a greater than 80 percent market share in its industry, as the paradigm of a forward-looking company sympathetic to “free culture.”

Of course there’s been consolidation. But fragmentation of media has occurred significantly faster, resulting in less market power, not more. The same is true with respect to copyright law and changes in technology: New technologies mean I.P. regulation covers things it did not before, but the realm of the free and unregulated-as Mr. Lessig himself documents well when he describes the explosion of “blogs”-has grown much more quickly.

Mr. Lessig ends his argument with this “astonishing conclusion”: “Never in our history have fewer had a legal right to control more of the development of our culture than now. Never.” If you think this statement accurately describes the world in which we now live, I’m not likely to change your mind. But if, like me, you think that we’re living in a world where the barriers to “cultural” entry have never been lower, then you’ll be curious to see how Mr. Lessig managed to end up somewhere so far from reality.

You’ll have to read closely: His accessible style gives his polemic an air of reasonableness even when it is at its thinnest.

Extremists on the other side make Mr. Lessig seem downright sensible. Jack Valenti, president of the Motion Picture Association of America, claims that intellectual property should be treated like any other property under the law, whereas, in fact, the Constitution has a specific provision that allows Congress to secure intellectual property rights of “Author and Inventors” only for “limited Times.” But Mr. Lessig’s own arguments are similarly flawed: He suggests that the Constitution’s free-speech provisions should somehow be read to require that the “limited Times” be very limited indeed. Again and again, Mr. Lessig subtly overstates his historic, practical or legal case-and, in the end, his credibility is undermined. To claim that Mr. Valenti’s admittedly extreme position has “no reasonable connection to our actual legal tradition,” for instance, ignores that the British common-law rule (which is arguably close to Mr. Valenti’s position) was the law in this country until the first federal copyright statute was enacted in 1790.

At times, it seems that Mr. Lessig is using the advent of the Internet as a pretext to pursue a radical copyright-policy agenda. Many of the points he makes about the impact of new technology could have been made with the advent of the Xerox machine. Creativity survived the Xerox machine and will survive the Internet without the need for a fundamentally different legal regime. Indeed, the essential impact of the Internet is that it has dramatically lowered the barriers to both accessing and sharing all forms of creative output. That’s why many of the examples Mr. Lessig cites to justify his proposals-restrictions on e-books or barriers to the creation of a digital archive-seem trivial in comparison with the explosion of new creative output that we experience all around us.

To be fair, some of Lawrence Lessig’s policy proposals seem sensible, and might even be helpful at the margins. But the idea that they could have a meaningful impact on the ability of “Big Media” to “lock down culture and control creativity” is something only a nerdy I.P. lawyer would believe.

Jonathan A. Knee is a senior managing director at Evercore Partners and an adjunct professor of finance and economics at Columbia Business School.