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In Elliot Lecture at YLS, Lawrence Lessig Analyzes "Free Labor, Free Culture"

On December 6, 2001, Lawrence Lessig '89, a professor of law at Stanford Law School, delivered the annual Ralph Gregory Elliot First Amendment Lecture at YLS on the topic "Free Labor, Free Culture."

Lawrence Lessig opened his lecture with an account of a contemporary legal case, before presenting an argument about how certain historical movements should inform thought about copyright law. And it was a case with a YLS connection.

Lessig described how Jeb Rubenfeld, the Robert R. Slaughter Professor of Law at YLS, had been active in defending Alice Randall, the author of the novel "The Wind Done Gone," which is a retelling of Margaret Mitchell's "Gone with the Wind" from a slave's perspective. Randall was sued by the estate of Margaret Mitchell for copyright infringement.

But Lessig argues that that "The Wind Done Gone" is a "counter story, a retelling." An appeals court eventually sided with Randall and her book was published, but Lessig noted the struggle and high cost she had to pay to reach that point. And he bemoaned the "demise of the public domain."

And here he turned to the past--to the time period around the Civil War in which both novels are set--to speak about the "ideals of free labor." The free labor movement, as Lessig describes it, was more than the drive for abolition, it was an idealistic vision of a democratic society based on independent artisans owning their own means of production. "The ideal of free labor took generations to grow, and more importantly for my purposes, it took the development of technologies and economies that could allow it to flourish."

However, with the development of the industrial revolution and the concentration of capital with large producers, the new "technology of production" led to the demise of this vision. Lessig emphasized that the aspect of the free labor movement that he wanted to learn from was not its failed revolutionary impulse, but the way in which the power achieved by private actors could be an enemy to freedom.

As a parallel to the ideal of free labor, Lessig described the ideal of free culture. And he traced the beginnings of this movement to the Enlightenment. Specifically, Lessig identified one small provision in an eighteenth century English law that specified that publishers' monopoly control over a book would end after a period of several years--creating the concept of the public domain.

Lessig next leapt to the fledgling United States, where he found Thomas Jefferson declaring that it is in the nature of ideas to be free and to circulate the globe. And he noted the narrow scope of the clause in the Constitution on which copyright power is based: Congress is authorized "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." Lessig added that very few books were copyrighted in the early years of the Republic, and the U.S. did not protect any foreign copyrights until 1891.

At that time, "one could take most of the culture of the world and do with it as you wished," Lessig noted. "No one had the right to regulate how this culture would grow."

However, in the last hundred years, Congress has expanded the scope of copyright protection in almost every direction. Copyright is now granted automatically; it protects a wider variety of arts; its duration has lengthened to as much as 70 years beyond the life of the author; and it has been expanded to derivative works. At the same time, media outlets have become largely concentrated in a few corporate hands. "Economic concentration with the expansion of rights means that at no time in our history has so much of our culture been formally and legally in the control of so few," says Lessig.

And this control is more than just a formal or monetary concern. Lessig points out that creativity is inextricably dependant on the use of previous materials--the combination, transformation, and adaptation of what previous artists or scientists had thought. "This is not parasitism, this is the essence of authorship."

Before the advent of the Internet, the limitations imposed by the law didn't matter very much to individuals, because of the high costs of the means of cultural production--such as printing presses and movie theaters. But with the "power of digital production," individuals can make and distribute music, film, and other forms of expression in a way they couldn't before. The original architecture of the network made the ideal of free culture "not only a value, but a possibility." And for a brief time, Lessig says, there was a glut of creativity.

However, "dinosaur industries" have been able to use the power of copyright law to "veto" new and threatening forms of distribution. He mentioned the demise of Napster as one example, and the case of Edward Felten, who was prevented from presenting a paper about the faults in a digital encryption system, as another.

"When the ideals of free labor could be realized in the context of culture, there is no longer any legitimate reason to perpetuate a system of controlled culture," declared Lessig.

"We are a house divided," he added. Using his home state of California as an example, he pointed out how the "North," centered around Silicone Valley, has an interest in the values of free culture and information exchange. Meanwhile, the "South," centered in Hollywood, is a culture owner, profiting from "artist/slaves," with an interest in controlling culture to a "maximal degree."

Lessig continues, "I believe we should wage a war to free culture . . . a more civil war, no doubt, than the free labor war was." And he adds that lawyers have a role to play in the war by maintaining the system of balance that is copyright law, and protecting it from those with no interest in balance.