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Lessig argues that increasingly strict copyright laws, driven by media industry lobbying and enabled by digital technology, are transforming American culture from a 'free culture' where creators can build upon shared works into a 'permission culture' requiring lawyers for creative expression.
- Copyright scope and duration have expanded dramatically while formalities were abolished, making nearly all culture creation technically illegal
- Concentration of media ownership combined with extreme copyright penalties chills creativity and locks down the ability to build derivative works
- Technology that could democratize culture production is being weaponized through law to entrench incumbent content industries against innovation
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The average copyright term has tripled from approximately 32 years in 1973 to 95 years in 2003, primarily because Congress has extended existing copyrights eleven times in the past forty years rather than allowing works to enter the public domain as the Copyright Clause requires.
“In 1973, more than 85 percent of copyright owners failed to renew their copyright. That meant that the average term of copyright in 1973 was just 32.2 years. Because of the elimination of the renewal requirement, the average term of copyright is now the maximum term. In thirty years, then, the average term has tripled, from 32.2 years to 95 years.”
The DMCA (Digital Millennium Copyright Act) makes it illegal to distribute information about how to circumvent copyright protection technologies, even when the circumvention itself would be legal fair use—for example, Ed Felten's academic paper describing weaknesses in encryption systems, or aibopet.com's code enabling owners to teach Sony Aibo robots new tricks.
“Aibopet.com received a letter from Sony about the aibopet.com hack... 'Your site contains information providing the means to circumvent AIBO-ware's copy protection protocol constituting a violation of the anti-circumvention provisions of the Digital Millennium Copyright Act.'... And though an academic paper describing the weakness in a system of encryption should also be perfectly legal, Felten received a letter from an RIAA lawyer that read: 'Any disclosure of information gained from participating in the Public Challenge would be outside the scope of activities permitted by the Agreement and could subject you and your research team to actions under the Digital Millennium Copyright Act ("DMCA").'”
The United States government pressured South Africa and worked with pharmaceutical companies to prevent the importation of generic HIV medications from countries like India, prioritizing intellectual property rights over the lives of 15-30 million Africans who would die without access to affordable antiretroviral drugs.
“The United States government opposed the bill... As the International Intellectual Property Association characterized it, "The U.S. government pressured South Africa ... not to permit compulsory licensing or parallel imports." Through the Office of the United States Trade Representative, the government asked South Africa to change the law - and to add pressure to that request, in 1998, the USTR listed South Africa for possible trade sanctions.”
Edwin Howard Armstrong's invention of FM radio was superior to AM radio but was deliberately stifled by RCA, which controlled the AM market, through corporate and legal pressure on the FCC, resulting in Armstrong's bankruptcy and suicide—demonstrating how corporations use government power to protect themselves against superior competing technologies.
“RCA at first kept the technology in house, insisting that further tests were needed. When, after two years of testing, Armstrong grew impatient, RCA began to use its power with the government to stall FM radio's deployment generally. In 1936, RCA hired the former head of the FCC and assigned him the task of assuring that the FCC assign spectrum in a way that would castrate FM.”
Creative Commons is a nonprofit effort to give creators a simple, lawyer-free way to license their work with specific freedoms (attribution required, noncommercial only, share-alike, etc.) so that the law provides a 'Some Rights Reserved' middle ground between total copyright control and public domain.
“The Creative Commons is a nonprofit corporation established in Massachusetts... Its aim is to build a layer of reasonable copyright on top of the extremes that now reign... Simple tags, tied to human-readable descriptions, tied to bullet-proof licenses, make this possible.”
Walt Disney built his creative empire by taking stories from the public domain (fairy tales like Snow White, Cinderella, Sleeping Beauty, and Pinocchio) and transforming them into animated films, exactly the kind of 'building upon the past' that would be illegal under current copyright law if the originals had been under copyright.
“In 1928, the culture that Disney was free to draw upon was relatively fresh... most of the content from the nineteenth century was free for Disney to use and build upon in 1928. It was free for anyone... Disney took these stories and retold them in a way that carried them into a new age... The catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942)... Rip, mix, and burn.”
The motion picture industry was founded by filmmakers fleeing Thomas Edison's patent monopoly that controlled film technology, establishing that new industries emerge precisely where old monopolies are escapable.
“Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of filmmaking, Thomas Edison... California was remote enough from Edison's reach that filmmakers there could pirate his inventions without fear of the law.”
The Wright brothers' invention of the airplane forced American law to reconsider the principle that property owners owned rights from the ground to the heavens, demonstrating that the law adjusts when technology creates obvious conflicts with outdated property rules.
“At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to 'an indefinite extent, upwards.' ... Then came airplanes, and for the first time, this principle of American law - deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past - mattered.”
The copyright system was originally designed with formalities (registration, marking, renewal requirements) that ensured most creative works would enter the public domain within a generation, but these formalities were abolished in 1976 when Congress followed European copyright law, making copyright automatic and perpetual in practice.
“In 1790, Congress enacted the first copyright law... if the author was alive at the end of that fourteen years, then he could opt to renew the copyright for another fourteen years. If he did not renew the copyright, his work passed into the public domain... By far the majority of copyright owners did not renew... The American system abandoned this sensible system in 1976. For all works created after 1978, there was only one copyright term - the maximum term.”
The statute of Anne (1710) limited copyright terms to 14 years with the possibility of renewal, recognizing that perpetual copyright would concentrate power in booksellers' hands and prevent the development of culture; a principle the American framers reinforced by constitutionally requiring copyright terms be 'limited' and by limiting copyright to authors (not publishers).
“The Statute of Anne granted the author or 'proprietor' of a book an exclusive right to print that book. In an important limitation, however, and to the horror of the booksellers, the law gave the bookseller that right for a limited term... the copyright 'expired,' and the work would then be free and could be published by anyone.”
The recording industry itself was born when Congress created a statutory license allowing record companies to record compositions without permission after the composer authorized a recording once, limiting the power of composers to control their work, a 'piracy' that gave rise to the entire recorded music industry.
“By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.”
The Supreme Court rejected the motion picture studios' argument that VCRs should be banned because they enabled home copying of films, establishing that devices with substantial noninfringing uses cannot be banned even if they enable some infringement, a principle that should apply to p2p file sharing.
“Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials.”
Historical precedent shows that when new technologies threatened existing copyright holders' business models (film threatened Edison's motion picture patents, radio threatened phonograph sales, television threatened radio, VCRs threatened theatrical releases), Congress found balance by allowing the new technology to exist while sometimes imposing statutory licensing requirements, rather than banning the new technology altogether.
“If "piracy" means using the creative property of others without their permission - if "if value, then right" is true - then the history of the content industry is a history of piracy. Every important sector of "big media" today - film, records, radio, and cable TV - was born of a kind of piracy so defined... The consistent story is how last generation's pirates join this generation's country club - until now.”
Television and film studios initially competed with radio and telephone companies, but through mergers and acquisitions, they became integrated with these industries, concentrating media ownership in a way that reduced diversity of voices and independent production.
“In 1985, there were twenty-five independent television production studios; in 2002, only five independent television studios remained... In 1992, 16 new series were produced independently of conglomerate control, last year there was one... In 2002, 75 percent of prime time television was owned by the networks that ran it.”
The RIAA sued Jesse Jordan, a 19-year-old computer science student who built a search engine to index files on his university's network (of which 25% were music files he did not curate), for $15 million in statutory damages—claiming 'willful infringement' despite the fact that he had done nothing to encourage the sharing of music, and the law cost his family $12,000 to settle despite having clear fair use defenses.
“On April 3, 2003, Jesse was contacted by the dean of students... The RIAA branded Jesse a pirate... they demanded that he pay them the damages for his wrong. For cases of 'willful infringement,' the Copyright Act specifies something lawyers call 'statutory damages.' These damages permit a copyright owner to claim $150,000 per infringement. As the RIAA alleged more than one hundred specific copyright infringements, they therefore demanded that Jesse pay them at least $15,000,000... Jesse's uncle worked to educate the family about the nature of the American legal system... the cost of fighting a lawsuit like this, Jesse was told, would be at least $250,000... So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or $12,000 and a settlement.”
Formalities in copyright law (registration, renewal, marking) should be reinstated because without them, it is impossible for creators to know what is protected and what is not, or to find copyright owners to ask permission from, making the permission system unworkable.
“In 1930, 10,047 books were published... In 2000, 174 of those books were still in print... you would need to determine which of the 9,873 books were still under copyright... Then for the books still under copyright, you would need to locate the current copyright owners. How would you do that? Most people think that there must be a list of these copyright owners somewhere... But there is no list.”
Lessig proposes that copyright should require registration and renewal after 50 years, with a small fee ($1), to move 98 percent of commercially unviable works into the public domain while preserving copyright for works still in commercial use, solving the 'orphaned works' problem while preserving creator incentives for valuable works.
“Under the old system, a copyright owner had to file a registration with the Copyright Office to register or renew a copyright. When filing that registration, the copyright owner paid a fee. As with most government agencies, the Copyright Office had little incentive to minimize the burden of registration.”
When Eric Eldred sought to publish free digital versions of public domain works like Robert Frost's poetry in 1998, Congress extended the copyright term by 20 years, preventing these works from entering the public domain until 2019, despite the fact that only 2 percent of works published in 1923-1942 have any continuing commercial value.
“In 1998, for the eleventh time in forty years, Congress extended the terms of existing copyrights - this time by twenty years. Eldred would not be free to add any works more recent than 1923 to his collection until 2019.”
Radio stations do not pay recording artists for broadcasting recordings—only composers are paid—which means recording artists give radio stations a valuable performance right for free, yet Congress has declined to extend this payment requirement despite a century of requests, demonstrating that copyright has never been about maximizing payments to creators but about balancing creator and public interests.
“It is one thing to have 'Happy Birthday' sung on the radio by the local children's choir; it's quite another to have it sung by the Rolling Stones or Lyle Lovett. The recording artist is adding to the value of the composition performed on the radio station. And if the law were perfectly consistent, the radio station would have to pay the recording artist for his work, just as it pays the composer of the music for his work. But it doesn't.”
In America, 43 million citizens downloaded music in May 2003, making them all technically felons under copyright law, creating a 'permission culture' where government regulation transforms ordinary behavior into crime rather than changing the law to match reality.
“According to The New York Times, 43 million Americans downloaded music in May 2002. According to the RIAA, the behavior of those 43 million Americans is a felony... We thus have a set of rules that transform 20 percent of America into criminals.”
Media ownership concentration has increased dramatically, with five companies now controlling approximately 85 percent of media sources, three companies expected to control 85 percent of media within a few years, and four companies controlling 90 percent of radio advertising revenues, whereas previously media ownership was distributed across many more independent entities.
“five companies control 85 percent of our media sources... the five recording labels of Universal Music Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control 84.8 percent of the U.S. music market.”
Code (software and hardware architecture) operates as a form of law that enforces copyright control without judicial review or fair use exceptions: once a copyright protection technology is built into hardware or software, it enforces rules absolutely without the flexibility or due process that courts provide.
“Code becomes law; code extends the law; code thus extends the control that copyright owners effect - at least for those copyright holders with the lawyers who can write the nasty letters that Felten and aibopet.com received.”
The Supreme Court's rejection of Eldred v. Ashcroft (challenging the constitutionality of the Sonny Bono Copyright Term Extension Act) represented a failure to apply the principles established in Lopez v. United States (requiring that enumerated powers have meaningful limits), thereby abandoning the constitutional requirement that copyright terms be 'limited'.
“I first scoured the opinion, looking for how the Court would distinguish the principle in this case from the principle in Lopez... The argument was nowhere to be found. The case was not even cited... Justice Ginsburg simply ignored the enumerated powers argument.”
The Internet and digital technologies have shifted the default legal state of all digital culture from 'unregulated' to 'regulated by copyright,' because every use of digital content creates a copy and therefore triggers copyright law, whereas in physical space most uses (reading, giving away, reselling) do not require permission.
“Enter the Internet - a distributed, digital network where every use of a copyrighted work produces a copy... uses that before were presumptively unregulated are now presumptively regulated... category 1 gets sucked into category 2.”
George Eastman's invention of roll film made photography accessible to ordinary people by lowering costs and reducing required skill, analogous to how the Internet has made content creation and distribution accessible to ordinary people, yet copyright law has not adapted proportionally to this democratization.
“The Kodak camera and film were technologies of expression... The barrier to expression was lowered... Democratic tools gave ordinary people a way to express themselves more easily than any tools could have before.”
Documentary filmmaker Jon Else could not afford to include a 4.5-second incidental shot of The Simpsons in his film because Fox demanded $10,000 in licensing fees, forcing him to digitally replace it, illustrating how copyright law makes derivative cultural works prohibitively expensive even when the use would clearly be fair use.
“Else called Fox and told them about the clip in the corner of the one room shot of the film... Fox "wanted ten thousand dollars as a licensing fee for us to use this four-point-five seconds of ... entirely unsolicited Simpsons which was in the corner of the shot."... Else didn't have the money to buy the right to replay what was playing on the television backstage at the San Francisco Opera... at the very last minute before the film was to be released, Else digitally replaced the shot”
Doujinshi (Japanese fan-created derivative comics that transform existing manga) number over 33,000 circles of creators producing content that is technically illegal under Japanese copyright law, yet the market flourishes because the volume of enforcement would be prohibitive, demonstrating that legal and actual regulation diverge when enforcement costs are high.
“More than 33,000 'circles' of creators from across Japan produce these bits of Walt Disney creativity. More than 450,000 Japanese come together twice a year, in the largest public gathering in the country, to exchange and sell them... Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the doujinshi market is an illegal one.”
The U.S. Patent and Trademark Office stated that open-source software 'runs counter to the mission of WIPO' because open source represents 'waiving' intellectual property rights, suggesting that the government believes copyright holders should not be permitted to voluntarily license their work on terms that reduce their control.
“Lois Boland, acting director of international relations for the U.S. Patent and Trademark Office, explained that 'open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.' She is quoted as saying, 'To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.'”
File sharing on the Internet produces four distinct types of sharing (A: substitution for purchase; B: sampling before purchase; C: access to out-of-print works; D: legally shareable content), and while type A causes some harm, types B, C, and D provide clear social value, yet the law treats all four types identically with severe penalties.
“A. There are some who use sharing networks as substitutes for purchasing content... B. There are some who use sharing networks to sample music before purchasing... C. There are many who use sharing networks to get access to copyrighted content that is no longer sold... D. Finally, there are many who use sharing networks to get access to content that is not copyrighted or that the copyright owner wants to give away.”
The threat that copyright maximalists pose is not that creators will stop creating if copyright is weakened, but that the legal system will become so burdensome that ordinary people will become widespread copyright infringers and lose respect for the legal system generally, corrupting democracy by turning mass civil disobedience into the norm.
“Wars of prohibition are nothing new in America. This one is just something more extreme than anything we've seen before. ... We pride ourselves on our 'free society,' but an endless array of ordinary behavior is regulated within our society.”
Lessig lost the Eldred v. Ashcroft case partly because he focused on constitutional principle rather than persuading the Justices that the issue was important enough to warrant intervention against Congress.
“In any case, I thought, the Court must already see the danger and the harm caused by this sort of law. Why else would they grant review?... I was not persuaded that we had to sell our case like soap. Just as a law that bans the swastika is unconstitutional not because the Court likes Nazis but because such a law would violate the Constitution, so too, in my view, would the Court decide whether Congress's law was constitutional based on the Constitution, not based on whether they liked the values that the framers put in the Constitution.”