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“See, for example, Lynch v. Household Finance Corp., 405 US 538, 552 (1972),Â Â Noah Webster â€” who, coincidentally, considered an author’s copyright equivalent to, and deserving of, the same protection as all other species of property, see Letter to Daniel Webster, Sept. 30, 1826 â…”
In the prologue of his 2004 book, Free Culture, Lawrence Lessig writes:
A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. The opposite of a free culture is a â€œpermission cultureâ€â€”a culture in which creators get to create only with the permission of the powerful, or of creators from the past.
Lessig starts out well enough with his observation that intellectual property rights are part of a free culture, but things go quickly downhill after that, and the remainder of the book does nothing to rehabilitate this descent.
Although Lessig was not the first to use the term “free culture” as an antithesis to “overly restrictive” copyright laws, he did play a major role in developing and popularizing the concept.
The problem with this description of a “free culture” is that it is placed opposite of “permission culture.” This could not be more wrong. Permission, or consent, is not the opposite of freedom, it is a necessary part of freedom.
In Western philosophy at least, consent is considered one of the foundations of a democratic society. ((See, for example, The Ethics of Consent,Â pp. 45-51Â (Oxford University Press 2010), citing Thomas Hobbes, Adam Smith, Immanuel Kant, and John Stuart Mill.)) Not only does legitimate authority derive solely from the “consent of the governed”, but one of the ends of government is the preservation of property â€” which, essentially, is a framework for organizing consent. As John Locke wrote:
Men therefore in society having property, they have such a right to the goods, which by the law of the community are their’s, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent.
In addition, property has long been considered integral to the maintenance of a free society. ((See, for example, Lynch v. Household Finance Corp., 405 US 538, 552 (1972),Â Â Noah Webster â€” who, coincidentally, considered an author’s copyright equivalent to, and deserving of, the same protection as all other species of property, see Letter to Daniel Webster, Sept. 30, 1826 â€” once wrote, “Let the people have property, and theyÂ willÂ have power â€” a power that will for ever be exerted to prevent a restriction of the press, and abolition of trial by jury, or the abridgement of any other privilege.”
Lessig’s conception of a “free culture” is fatally flawed.Â The opposite of consent, of permission, is not freedom, but force. Freedom requires consent, property is built on consent, and the two are inextricably intertwined.
This holds true whether we are talking about the species of property governing tangible items or the species of property governing intellectual items.
I would argue that the nature of the works protected by copyright â€” expressive, cultural, scientific, etc. â€” makes it more, not less, important to fit them within this liberty/property paradigm. For in addition to the freedom and self-realization creators gain when they are able to reap what their labor has sown, the works they create enrich the general public, allowing society itself to flourish.
The necessity of this to a free culture was recognized most recently by a federal court less than three months ago:
Paraphrasing James Madison, the world is indebted to the press for triumphs which have been gained by reason and humanity over error and oppression. Investigating and writing about newsworthy events occurring around the globe is an expensive undertaking and enforcement of the copyright laws permits AP to earn the revenue that underwrites that work.Â Permitting Meltwater to take the fruit of APâ€™s labor for its own profit, without compensating AP, injures APâ€™s ability to perform this essential function of democracy. (Emphasis added). ((The Associated Press v. Meltwater US Holdings, Dist. Court, No. 12 Civ. 1087 (DLC) (SDNY March 21, 2013).))
Journalism’s role in fostering democracy may be somewhat obvious, but the fine arts play their role as well.
It has not been customary to include the arts, the fine arts, as an important part of the social conditions that bear upon democratic institutions and personal freedom. Even after the influence of the state of industry and of natural science has been admitted, we still tend to draw the line at the idea that literature, music, painting, the drama, architecture, have any intimate connection with the cultural bases of democracy. Even those who call themselves good democrats are often content to look upon the fruits of these arts as adornments of culture rather than as things in whose enjoyment all should partake, if democracy is to be a reality. The state of things in totalitarian countries may induce us to revise this opinion. For it proves that no matter what may be the case with the impulses and powers that lead the creative artist to do his work, works of art once brought into existence are the most compelling of the means of communication by which emotions are stirred and opinions formed. The theater, the movie and music hall, even the picture gallery, eloquence, popular parades, common sports and recreative agencies, have all been brought under regulation as part of the propaganda agencies by which dictatorship is kept in power without being regarded by the masses as oppressive. We are beginning to realize that emotions and imagination are more potent in shaping public sentiment and opinion than information and reason. ((John Dewey,Â Freedom and Culture, pp. 9-10 (Capricorn Books 1963) (1939).))
Now, what copyright brings to the table is not a necessary condition for creating expressive works; surely we will still have writers and artists without these rights. Instead, it brings a type of creativity that is separate from government, whether such sponsorship is benign or “part of the propaganda agencies by which dictatorship is kept in power”, and separate from the whims of the wealthy elite, such as you might find under a patronage system. It is the freedom to create independently, facilitated by copyright, that has long been recognized as essential to a free press, a free society, and a free culture. Just a few examples from a diverse array of sources over the past two centuries that speak to this recognition include…
…this passage from a journal article in 1844:
If the public desire a really free press, they must not look to it as a source of taxation; and if they are anxious for truth, for elevated and elevating sentiments, for ideas matured by study and reflection, and an honest exposition of grievances, they must recognise original articles as property, and secure them against a plundering appropriation by a copyright. ((“Impediments to Knowledge“, The Reasoner No. 17, 264 (1844).))
…British lawyer James Paterson in 1880:
When any person is free to publish whatever he deems interesting or valuable either as a mode of procuring profit to himself or as a means of influencing the minds and will of his fellow-citizens on matters on which union and combination can effect great results, this is the highest mark of freedom. ((The Liberty of the Press, Speech, and Public Worship, pg 14. (Macmillian 1880).))
…historian Edward Bloom in 1949:
Recognition of proprietary rights of authors under the Copyright Act of 1709 was an extremely important step in liberating the press. Copyright security helped to stimulate private initiative by providing authors of books some measure of financial independence. By at least partially obviating the economic function of political patrons, the Act of 1709 aided immeasurably in the freedom of the press. ((Edward Bloom,Â Johnson on a Free Press: A Study in Liberty and Subordination, A Journal of English Literary History (Dec. 1949).))
…former Register of Copyrights Barbara RInger in 1974:
[T]he concept of copyright changed radically as a result of the revolutionary political movements of the late 18th and 19th centuries, and the first copyright statutes were based on a rejection of autocratic repression and monopoly control and upon a new recognition of individual liberty and the human rights of authors. … Freedom of speech and freedom of the press are meaningless unless authors are able to create independently from control by anyone, and to find a way to put their works before the public. ((The Demonology of Copyright, R.R. Bowker Memorial Lecture, 1974.))
…or copyright scholar Neil Netanel in 1996:
By according authors and their assigns a proprietary entitlement, copyright fosters the development of an independent sector for the creation and dissemination of original expression, a sector composed of creators and publishers who earn financial support for their activities by reaching paying audiences rather than by depending on state or elite largess. ((Copyright and a Democratic Civil Society, 106 Yale Law Journal 283,Â 347Â (1996).))
So I think it is no stretch to say that property in expressive works, built on consent, plays a vital role in the maintenance of a free culture. The modern definition of “free culture” to mean a permissionless culture â€” one that calls for a regressive weakening of creators’ rights â€” is a dramatic reversal of longstanding conceptions of property and freedom. And, ironically, it achieves the opposite of what it purports to address. As legal scholar Guy Pessach observed in a forthcoming article (which I wrote about on Monday), weak copyright protection increases media concentration and decreases cultural diversity. In addition, Thomas Joo has argued that more permissive rules toward “remix” also reinforce dominant culture, contrary to what proponents of such rules (including Lessig) have claimed.
In a recent commentary, Lawrence Lessig stated the need to “learn how liberty can live in the digital age.” Just last month, Ethernet inventor Bob Metcalfe said, “The Internet needs to deal with property properly.” I would suggest the two are interdependent, which is clear once we start with a better definition of “free culture.”