My father, a great litigator, taught me the value of analogies and stories to good lawyering: The right story creates a context in which your arguments make sense. For the past quarter century, copyright law has been dominated by a property story. Little surprise, because those telling the story — the publishers, broadcasters, and entertainment companies to whom we’ve delegated the maintenance of culture — use it to consolidate their control. In a property story, stopping “theft” by any means necessary makes sense.
Lawrence Lessig gives us an alternative story, a story about Free Culture. Building upon the history Jessica Litman recounts in Digital Copyright, Lessig shows how copyright’s extended term and expanded scope block creativity: Documentary filmmakers have to cede editorial decisions to lawyers because they won’t get a showing if they rely on “fair use” for a few seconds of The Simpsons playing in the background; Programmers can’t teach robotic dogs to dance.
In the free culture story, copyright exists to promote culture, and culture benefits from sharing. When copyright’s controls impinge on public discussion and subsequent creativity, copyright should be changed, not the public “copying.” Copyright law didn’t descend from the heavens fixed in stone. It came to American law from a group of founders who were deeply skeptical of monopoly control but saw cultural value in granting authors short-term, limited-scope protection from commercial appropriation. In the founders’ tradition, we should reshape copyright so it continues to promote cultural progress; updated for today, that means giving copyright holders less control, not more.
For Lessig’s book, a Creative Commons license allowed the public to build a trove of remixes and new formats (see especially the audiobook). As more works are made available under CC and similar open licenses, we’ll see local advantages, and brighter stories. Perhaps these will be enough to persuade the Disneys and Sonys to open their cultural dark archives. In the meantime, I hope that the freely share-able works, and the stories they tell, will inspire others to join our fight to change the copyright law.