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“Free Culture” By Lawrence Lessig New York: Dutton; 368 pages; $24.95 Anyone who has been to law school remembers the “common sense moment” — probably with horror. A law professor cites a seemingly absurd decision. A student speaks up in protest, trying to argue against the absurdity. And fateful words pass the student’s lips: “It’s just common sense!” The law professor then smiles a wicked smile; it’s evisceration time. “What work are you citing, Mr. Smith? Is this Thomas Paine’s “Common Sense”? Is there some legal precedent by this name I do not know of?” By the time the bell rings, the student has been thoroughly humiliated. Common sense, we are taught, has no place in the black letter world of law. Sometimes, though, it does. In 1946 the U.S. Supreme Court made modern air travel possible by getting rid of the implausible interpretation of property rights that said a person’s property extended to the heavens. The “doctrine has no place in the modern world,” Justice William Douglas wrote. If the classic interpretation were allowed to stand, “every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.” Progress often causes us to rethink old ideas — especially those that common sense revolts at. And to Lawrence Lessig, a professor at Stanford Law School and leader of what he calls the “free culture” movement, it’s time for common sense to bring about some changes again, and to keep big business interests from being able to “remake the Internet before the Internet remakes them.” In his latest work, Lessig points to the music industry’s war on file traders as only one battleground between what’s free and what’s controlled — but a typical one. Certainly, he argues in this passionate book, artists should be paid a reasonable amount for their creative works, and people who steal should be punished. But there is a muckier middle ground where progress and creativity can be found. And a fundamental change in the balance of power between copyright holders and those who enjoy access to those works has tipped dangerously, he says. The need to get permission to copy or build on previous works is being restricted by law and software to create a new culture based on permission: “My fear is that unless we come to see this change, the war to rid the world of Internet pirates will also rid our culture of values that have been integral to our tradition from the start.” The book touches on themes that Lessig has explored before in “Code: And Other Laws of Cyberspace in 2000,” and even more closely in “The Future of Ideas: The Fate of the Commons in a Connected World,” a 2001 book that delves deeply into copyright law and argues that intellectual property holders and their lawyers are stifling creativity. Life in the media spotlight has done Lessig good: As he has improved his ability to deliver a sound bite, his prose has gotten more taut, and even punchy. “Code” was slow going, and “The Future of Ideas” had its share of clunkers. But this latest book is a manifesto with bite. There are even zingers. He calls Motion Picture Association of America president Jack Valenti “perhaps the nation’s foremost extremist when it comes to the nature and scope of ‘creative property’” for arguing over the decades that intellectual property should be treated the same as any other property. This idea, he says, “would effect a radical, and radically undesirable, change in our tradition.” And, then, a final hammer. “Valenti knows this,” he writes. “But he speaks for an industry that cares squat for our tradition and the values it represents.” Lessig’s big thought is that it’s time to rethink copyright law entirely. In the old days before the Internet, he says, copyright law could be thought of as regulating copies. But the world, Lessig says, has changed: “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.” Attentive to persuasion, he circles back. This idea is, he says, “perhaps the central claim of the book, so let me take this very slowly so that the point is not easily missed.” He restates: “My claim is that the Internet should at least force us to rethink the conditions under which the law of copyright automatically extends, because it is clear that the current reach of copyright was never contemplated, much less chosen, by the legislators who enacted copyright law.” Last comes a summary amplification, via a footnote: “Thus, my argument is not that in each place that copyright law extends, we should repeal it. It is instead that we should have a good argument for it extending where it does, and should not determine its reach on the basis of arbitrary and automatic changes caused by technology.” In copyright law, he argues, legal code and software code come together to bind consumers and artists alike. The digital rights management schemes that prevent us from copying more than ten text selections from an e-book in a ten-day period are controlled by the machine, and the delicate balancing acts of justice go into the bit bucket. And under the provisions of the Digital Millennium Copyright Act, trying to get a little justice by loosening up software code with a hack or two can get you sued. Ask Ed Felten, the Princeton professor who was threatened by the Recording Industry Association of America in 2001 for preparing a paper that described weaknesses in an encryption system pushed by the Secure Digital Music Initiative, a group dedicated to finding ways for software to help control the distribution and copying of music. An owner of the Sony AIBO electronic dog got a similar notice from the manufacturer for coming up with a way to reprogram the digital pet to dance jazz. Lessig calls the DMCA “Orwellian,” and calls it “legal code intended to buttress software code which itself was intended to support the legal code of copyright.” The law makes it illegal to circumvent copy protection, and creates a new level of copyright law for which there was no “fair use” exception. The result has been a wave of lawsuits and takedown notices, and an international movement to take back the ground that has been seized by copyright holders. Lessig goes back to the original balancing act enshrined in the Constitution: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That “limited time” gets extended again and again, while companies and their lawyers and their friendly legislators and judges find ever new ways to restrict public access to the works they want to sell. The restrictions of intellectual property will keep the next Walt Disney from borrowing someone else’s story to make a children’s classic, he says; it will prevent the next hot new technology from taking off the way radio and videotapes did. “Common sense must revolt,” he writes. “It must act to free culture. Soon, if this potential is ever to be realized.” The beating heart of the book is Lessig’s pained recollection of a case involving Eric Eldred, a man who wanted to put works that are in the public domain up on the Internet, but found himself frustrated at the ever lengthening terms of copyright passed by Congress in laws like the Sonny Bono Copyright Term Extension Act. Lessig worked with Eldred, and the case went all the way to the Supreme Court — and Eldred lost. “It is still astonishingly hard” to tell the story a year after the decision, he writes. He argued the case before the Supreme Court, and flagellates himself for not delivering a passionate plea to overturn the law instead of the cool appeal to reason that he delivered instead. “A better lawyer would have made them see differently,” he writes. Well, no. That point of view inflates the importance of oral argument, that brief time before the justices when they prod and poke and engage in the sport of inducing hand waving by the attorneys. Anyone who has watched oral argument and then read the subsequent opinion knows that oral argument may be important, but it’s not the whole ball game. The justices also have at their disposal every brief and resource, as well as months to mull over the case and argue its fine points among themselves. After the Court handed down its decision, The New York Times published an editorial that said, “In effect, the Supreme Court’s decision makes it likely that we are seeing the end of public domain and the birth of copyright perpetuity. … The ability to draw freely on the creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment.” It’s never too late to try a little common sense, Lessig says. It’s only one of the things that makes him such an unusual law professor — and such an important voice in the ongoing copyright wars. John Schwartz is a reporter for The New York Times . He can be reached via e-mail at jswat[email protected].

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