03 April 2004

More or Lessig

Larry Lessig's book Free Culture purports to discuss problems with the "locking up" of culture by "excessive" copyright (what I've come to call the "copyfreedom debate"). Professor Solum is currently engaged in a long, thoughtful summary over at the Legal Theory Blog (the first entry was on Monday). More "traditional" reviews by Adam Cohen (largely positive, NYTBR) and Stephen Manes (muckrakingly negative at Forbes; if I recall correctly, Manes used to be a columnist at PC Magazine, back in the bad old days of copy-protected software, and I don't recall that he defended copy protection). Professor Solum has not finished yet, so I'll reserve judgment (although my "judgment", such as it is, will probably be honest disagreement with some aspects and appreciation for others). I am much less pleased with the two more-traditional reviews cited here, because I believe that they are both grievously misleading.

Cohen's main problem is that he is being flip and summary in his understanding. He never gets at the most significant weakness of Professor Lessig's book: the treatment of all copyrightable material as part of the same class, both by the law as it stands and by Professor Lessig's proposals. More damning, however, is that he just uses the word "copying" without any real understanding of the complexities of artistic influence, of artistic creation, and of same-medium derivative works—and he completely fails to consider non-copyright issues, such as the trademarks created by certain properties. This latter failing is almost universal in its presence in the copyfreedom debates, on both sides. Cohen's review is useful in describing some of the strengths of the book, but completely misses the boat otherwise. Of course, this is not entirely surprising, given that Cohen does not appear to have much experience dealing with those whose works are used as sources (within or without the law); he is a reporter of facts, which is a different perspective entirely. At least Cohen concedes that some of what Professor Lessig has to say reflects real problems, even if he disagrees with nuances.

Manes, however, borders on intellectual dishonesty more commonly found in Inscrutable Design. For example, he makes this startling pronouncement:

To hear Lessig rant, you'd think copyright holders were hauling infringers into court in the manner of a cattle roundup. In fact, copyright suits are stunningly rare. In the 16 years from 1988 through 2002, the average was 2,252 per year, less than 1% of all cases in the U.S. federal courts. Is the number rising drastically in Lessig's beloved cut-and-paste era of the Web? Nope: The high-water annual mark in that period was 2,828, back in 1994, just as the public Web was barely getting started. In 2003, the caseload was just 2448, presumably including all the Recording Industry Association of America's suits against egregious file "sharers." The trend is slightly downward.

(Hyperlink omitted.) Notice the assumption here: That only actually filing a suit means that there has been an assertion of copyright, or that someone has been inhibited from engaging in activity by the threat or even mere possibility of a suit. This doesn't even rise to the level of "bad use of statistics," because the statistics offered aren't even accurate. Copyright issues arise in a lot of other contexts that are not covered by the Judiciary Center's statistics. For example, Dastar is characterized as a "trademark infringement" action, even though the theory advanced by the plaintiff depended explicitly upon interpretation of the Copyright Act. In my experience, this is a lot more common than one might otherwise believe; the distinctions among various types of intellectual property, and antitrust and unfair competition law, are far more nebulous than one might otherwise expect.

More egregiously, though, Manes (and, for that matter, Cohen) assumes that "copying" is an "all or none" activity. While there is a grain of truth in his argument, he perverts Professor Lessig's point.

For all his talk about creativity, Lessig isn't any true creator's friend. His assault on copyright largely helps a ragtag bunch of gleaners who claim that copying is "creativity" because they can't create anything without directly reusing copyrighted material, except when it comes to fictions about Disney's use of other works. Only if Mickey Mouse can be wrestled into the public domain will their true "creativity" be unleashed.

Admittedly, a major part of the problem with Lessig's approach is its unwarranted extension from certain (very real) problems with WFH-based "pop culture" into a questionable assertion that all copyrightable material must be treated identically, even when the current system actually provides more incentive for "advancing the useful Arts." However, this paragraph reflects so much misunderstanding of the creative process that I don't really know where to begin. Perhaps the best place to begin is with literary theory; however much I disagree with the implications Professor Bloom draws from particular instances, his The Anxiety of Influence (1973) does provide a critical window on the creative process that the contestants in the copyfreedom debates neglect. The irony that Manes accuses Professor Lessig, in so many words, of being an "intellectual bully" because Professor Lessig "…demonstrates that he doesn't really know or care what the public domain really is, apparently blinded by his grand wish that damn [sic] near everything be put there" has escaped Manes. Manes's one concrete example—the reuse of other materials by Disney—is actually the converse of Professor Lessig's argument. Professor Lessig's objection is not as to Disney's own use, but to attempts by Disney to prevent others from doing the same. From that perspective the only examples that matter are those that originated in the public domain; thus, seven of Manes's examples are just plain irrelevant.

The substance of Manes's rant is in the pejorative adjectives ("Apparently 9-for-16 on the facts is good enough in the Emerald City of Palo Alto—hey, it's a better ratio than the two of nine U.S. Supreme Court justices Lessig managed to win over to his flaccid arguments in the Eldred case."), which seems to have escaped Manes and his editor. Bullying can certainly cut both ways; <SARCASM> but far be it from me to accuse a right-wing demagog of bullying </SARCASM> . This isn't just bad writing; it's bad thinking, if the knee-jerk reaction Manes displays can be graced with that term in the first place. ("Knee jerking" is not something confined to "liberals"; it is instead inherent in extremism. Hell, there are times that I do it.) I don't have to agree with everything—or even anything—that Professor Lessig says (and much of what he says is, to my mind, correct) to disapprove of the intellectual dishonesty of Manes's attack either in the article I've been citing or in his "book review" of 29 March (also at Forbes, although it's such a shoddy piece of work that I'm embarrassed to link to it).