Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig

Reviewed by
Brian Trench



hen an author is as publicly active as Lawrence Lessig, and when a book comes with a supporting web site, an author’s blog, and surrounded by previous and subsequent discussions of many of its themes and proposals, the reviewer can find it difficult to know where to start. Anybody with more than a passing interest in political, legal and ethical issues arising from new media development is likely to be familiar in some way with Lessig. Scientific American named him as one of its Top 50 Visionaries. A colleague and I included him in our ‘top twenty’ (18, as it turned out) analysts of the information society in a briefing requested by the Information Society Commission, an advisory body to the Irish government.

Lessig is a widely respected commentator, an advocate and activist  (“a cultural warrior”), as well as an academic. His frequently cited blog has had leading Democrats, judges, politicians and professors, as invited contributors. His web site carries the badges of the campaigns with which he is prominently associated, chief among them Creative Commons (chair: Lawrence Lessig), a licensing agency that presents a kind of ‘third way’ between traditional copyright and free-for-all.

Lessig acknowledges the uncertainties that attend this discussion. He steers between the condemnations and the celebrations of Napster downloading and other such challenges to copyright protection. He warns against the dangers of a polarized debate. He distinguishes in nuanced ways between the rights of authors, publishers and re-publishers. But he is very certain that the current trends in copyright law are damaging to culture and to democracy. Over the 300 pages of this book, the reader is being persuaded to accept a definition of the copyright problem to which Creative Commons is one, if not the, answer. ‘Free Culture’ has itself been published through the Creative Commons licensing procedure, which means that it can be downloaded from the web, subject to certain terms.

Lessig stacks up many fascinating cases and illustrations and compelling arguments to persuade readers of the validity and urgency of his concluding set of recommendations. He invokes American traditions, represented by the United States constitution and Walt Disney’s creativity, to buttress his case. Although the heart of the book is in the detail of law, Lessig as an advocate presents his argument as one about culture and creativity. For this reader, this scaffolding is the least persuasive aspect of the book. The use Lessig makes of “free” (as in “free culture”), of “culture” and of  “creativity” is highly tendentious. Here, “culture” refers to the entertainment industries and its products. “Creativity” refers to production in those industries, as evidenced in the strange notion of the “volume of creativity”. “Free” is the opposite of “non-free”, although the reference to “free-culture licenses”, as provided by Creative Commons, expresses the irony – of which Lessig seems hardly aware - of freedom having to be licensed.

What this book’s usage of “culture” leaves out could fill several more books. That may well be Lessig’s intention, as a prolific author. He makes only passing mention of the scandal surrounding the control of rights in scholarly publishing with which he is actively engaged through Public Library of Science. He leaves out of view the arguments about journalists’ copyright and  “open source” journalism, although these chime with those he does pursue.  And he gives scant attention to cross-cultural difference, except perhaps to reveal a disquieting lack of interest in European norms and values.

Lessig’s critique of the drift of US copyright law is that it is approaching European standards. However, he does not stop to reflect why Europe is as it is (not singular, for a start) and fails to notice the contradiction in his citing of the (European) British Broadcasting Corporation as an exemplar of best practice in archive access.

Lessig’s primary references are those of a constitutional lawyer – the fundamental law of he United States and the judgments of the Supreme Court. A significant part of this book is the self-critical account of how he pursued a case through to the Supreme Court, in support of a New Hampshire citizen who was being obstructed in his efforts to build a public archive of literature in the public domain. Goliath slew David, and, in this book, David’s defender is licking his wounds, pointing out how he failed adequately to demonstrate the harms caused by the “extraordinary land grab” that is going on. Much of the detail in these chapters, in the historical examples of copyright claims and in the accounts of industry lobbying of Congress is intriguing, and appalling. Lessig demonstrates through myriad examples how controls on creative expression are becoming both broader and tighter. He reports almost casually on the way policy-makers and legislators are in the thrall of big-industry interests. He describes the growing power of ever-larger media conglomerates, though he turns a blind eye to dominant Disney, whose early achievements served to support his case on the necessary role of “piracy” in cultural production. He presents a valuable model of evolving relations between Norms, Law, Market and Architecture (technology).

Lessig believes strongly in the potential of the Internet to facilitate a shared culture. In blogs, he sees unfettered public discourse at work. In the instantaneous republication that is going on continuously on the Net, he sees cultural democracy in practice. Formalities are needed to protect such activity, but less regulation, and, above all, fewer lawyers. In these conditions, Lessig believes, a free culture can be reclaimed from the land-grabbers. Just how we get there, or just how the tide is to be turned, is not so clear.