[wos] Forbes.com slams Lessig: The Trouble With Larry

[Volker Grassmuck]

The Trouble With Larry
Stephen Manes, 03.29.04, 12:00 AM ET
http://www.forbes.com/forbes/2004/0329/084_print.html


"Fixing" copyright to protect pirates is like abolishing property laws to
help squatters.
Stephen Manes


Man the barricades for your right to swipe The Simpsons! According to
Stanford law professor and media darling Lawrence Lessig, a "movement must
begin in the streets" to fight a corrupt Congress, overconcentrated media
and an overpriced legal system conspiring to develop "a ‘get permission to
cut and paste' world that is a creator's nightmare."

That's the gist of Lessig's inflammatory new screed, "Free Culture: How Big
Media Uses Technology and the Law to Lock Down Culture and Control
Creativity" ({(C1)}Penguin Press{(T1)}, $25; free online starting Mar. 25).
A more honest title? Freeloader Culture: A Manifesto for Stealing
Intellectual Property.

"There has never been a time in our history when more of our ‘culture' was
as ‘owned' as it is now," Lessig huffs. Huh? In the 1920s, 1930s and 1940s a
handful of companies exerted ironclad control over the movie, radio and
record businesses; Xeroxes and tape recorders were nonexistent. Though "cut
and paste" was limited to scrapbooks, creators of all stripes somehow
managed to flourish.

Contrary to Lessig's rants, today's technology has made creators freer than
ever to devise and distribute original works. But technology has also given
consumers powerful weapons of mass reproduction with strong potential for
abuse. The intellectual property issue of our time is how to balance the
rights of creators and consumers.

Don't look to Lessig for that balance. First he reasonably extols "‘Walt
Disney creativity'--a form of expression and genius that builds upon the
culture around us and makes it something different." But then, in a
rhetorical bait-and-switch, he spends most of the book making the case that
a free pass should be given to the specific kind of "creativity" that
directly reuses existing work, up to and including wholesale sampling and
so-called sharing.

That's nuts. Disney reworked public-domain material like "Snow White"
gratis, but paid to use copyrighted works like Peter Pan. In a footnote,
Lessig observes that "Disney paid royalties to use the music for five songs"
in his first sound short. Like most responsible creators, Disney understood
the crux of copyright: The owner of a work has the exclusive right to
authorize how it may be used. Adapt someone's material, and you generally
have to ask permission; you may even have to pay.

Yet often you don't, which is where Lessig's argument dissolves. "Fair use"
exceptions in existing copyright law--like the ones that let me quote Lessig
here--are so expansive that just about the only thing cut-and-pasters
clearly can't do legally with a copyrighted work is directly copy a sizable
portion of it. Even then, there are many exemptions for classroom, library,
archive and personal use. And the Web lets you legally link to copyrighted
material.

That's not nearly enough for Lessig, who once proposed a laughable ten-year
maximum term for software copyrights and later suffered a 7-to-2 Supreme
Court whupping over his claim that the 1998 Copyright Term Extension Act was
unconstitutional. The book proposes a slew of sweeping copyright law changes
that would consistently screw creators, reward infringers and put the U.S.
at odds with international law. Some of Lessig's proposals might well help
the big media he claims to detest by offering them the chance to poach
material they once would have had to pay for. And he endorses a bizarre,
unworkable system of regulating file-sharing in which owners would be paid
out of the proceeds from unspecified taxes, "to the extent that harm could
be shown"--a sort of federal insurance pool for stolen tunes.

At a time when intellectual property provides America's greatest worldwide
successes, overturning established international copyright principles to
legalize infringers is like abolishing real estate law to help out
squatters. Let's make it clear: The artists who would benefit most from
Lessig's legal meddling are rip-off artists.



Stephen Manes (steve at cranky.com), was cohost of Digital Duo and has been
covering technology for two decades. Visit his homepage at
www.forbes.com/manes.


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