Letter to Professor Lessig on Free Culture

October 16, 2008

This letter was never actually sent to Professor Lessig.

Written in response to the book "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity"

I enjoyed reading your book Free Culture. Free cultural works have always fascinated me since I value the concept of freedom and its application on creative works. Science develops through the combined work of different people and I believe the same can be true for cultural works. Science and cultural works are both forms of human knowledge; they are something to be shared rather than restricted.

Before reading the book, my opinion was more focused on the simple idea of free culture by itself. It was only after reading the book that I realized the "bigger picture" - the politics behind increasingly restrictive copyright laws and their effects on innovation. I realized how technology can affect laws and in turn be affected by supportive or restrictive laws. I particularly liked your example about American property laws which - until wide use of air transport - originally claimed one's property extended infinitely upward in the atmosphere.

Without a doubt, the Internet has changed the exchange of information. Unfortunately, as you state, our copyright laws have changed in precisely the opposite direction. While the Internet has facilitated the spread of knowledge, increasingly restrictive and longer-lasting copyright laws prevent the the spread of knowledge. Your comment about "perpetual copyright on the installment plan" is very humorous, but sadly it fairly accurately describes the current state of copyright law.

While most arguments in the technology field are irrelevant after a short period of time, your book is more relevant now than when it was published. It is true that the Creative Commons project you founded is successfully promoting the creation of free cultural works. However, I would argue that an organization like the Electronic Frontier Foundation (EFF), founded 28 years ago, combats the challenges you talk about (the challenges faced as a result of restrictive laws against ideas on the Internet) by protecting free speech in the digital age. And while the EFF has gained a lot of support among people, the challenges you talk about are ones that the EFF still faces.

Right now, the governments of the United States, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico, and the European Commission are secretly negotiating on an agreement called the Anti- Counterfeiting Trade Agreement (ACTA). The name of the treaty is misleading since it actually focuses on "Internet distribution and information technology." The spread of ideas is core to the theme expressed in Free Culture, and the treaty is therefore very relevant to your book. The proposed treaty would impose strict enforcement of Internet-related copyright infringement internationally with a dedicated international enforcement organization. It would also decrease privacy through border searches of electronic devices and disclosure of Internet service customer information without a warrant. It weakens the idea of innocent-until-proven-guilty by allowing previously unlawful searches without a probable cause. By creating a culture of surveillance and suspicion specifically in regards to digital methods of distributing ideas, free culture is seen as a danger and threat rather than as a culture of creativity and innovation.

As you reference multiple times in your book, the Digital Millennium Copyright Act (DMCA) enacted in 1998 has been one of several restrictive laws that inhibit the exchange of information over the Internet. One of the several criticisms of the law is the fact that it allows anyone to claim they own the copyrights to a work on the Internet and issue a takedown notice. I read your recently published essay "In Defense of Piracy"[*] in the Wall Street Journal. As you state, Ms. Lenz's recording of her 13-month-old child is obviously fair use under copyright law, but the DMCA does not allow YouTube to contest illegitimate takedown notices without itself assuming liability.

I am optimistic that the future is bright. Three days ago, John McCain and Sarah Palin demonstrated their disappointment with the DMCA (even though McCain did vote in favor of the DMCA in 1998). Their campaign sent a letter to YouTube complaining about illegitimate DMCA takedown notices that resulted in the removal of campaign clips from YouTube at critical times. The McCain-Palin campaign recommended YouTube to manually review political campaign videos, but I believe this is hypocritical and against the spirit of YouTube. It would also add legal expenses and expose YouTube to liability for copyright infringement. YouTube's response was pretty close to my own opinions and stated the legal expenses, liability, and favoritism that the recommendation would cause. I am certain the Obama-Biden campaign has been facing similar takedown notices, so I would hope that the next president of this country would realize the root cause of this situation and work to make sure that our laws are appropriate for the Internet.

[*] The essay contains the story of a parent who recorded a video of her 13-month-old son dancing for 29 seconds to the music Prince and uploaded this video on YouTube to share with her family. The video was later removed from YouTube due to a takedown notice from Universal Music Group as the video contained a short and barely-noticeable recording of the music Prince.