The second is because this "copyright war" in the US is framed as big companies trying to protect their profits vs. pirates who steal books and music and movies. Both parties use the "content creators" (us!) as their justification. The companies, such as record labels or the estates of various deceased authors, claim to be trying to protect authors and the author's royalties, that authors need to be compensated for their creative work. After all, what kind of person would steal from the creative people that bring us most of our culture? Only a horrible pirate, that's who. The "pirates", at least those who make a claim of morality and don't just admit they like free stuff, claim that the free sharing promotes the authors by allowing people to sample their work before buying. After all, why should anybody buy a book or a CD without knowing what's in it? You can flip through a book in the bookstore, and a lot of music stores have listening stations where you can check out a selection of CDs, you can loan books, CDs, and movies to friends - it's free promotion.

But despite both parties claiming to promote our interests, were we asked? Some authors and artists, notably a few very rich ones, have spoken against file-sharing. Some authors and artists have tried freely releasing selections of their own work, as an experiment, and report good results.

Free Culture is one of the few things written about the "copyright war" in the U.S. that goes beyond the "companies vs. pirates" view.

The book

Despite the topic of Free Culture -- an arid intersection of two topics generally considered dry, law and history -- it is a remarkably pleasant read. It balances summary and anecdote, neither lecturing excessively nor degenerating into a sob story, as it explains the current U.S. copyright situation and how it came about. The anecdotes included are selected to illustrate the points of history and law, to give us a concrete reference point for an abstract idea. (They often involve lawsuits; unsurprising when the author is a lawyer and has easy access to the records.)

One point was repeated over and over, often blatantly and occasionally quietly, which I found both wearing and saddening. Saddening, because the point repeated was the explanation that arguing against a particular law did not mean arguing for anarchy, that arguing against one extreme did not mean arguing for the other, or "criticism of DDT is not an endorsement of malaria" as he says in the book. There are other options.

It seems that this view which he argues against throughout the book is part of the cause of the usual framing of the "copyright war" as being between companies and pirates -- those are two extremes, so obviously one must be right and one must be wrong. Obviously? Lessig argues that both are right.

"Piracy"

The first section of the book reviews the history of copyright and creativity in the U.S. and Britain (prior to U.S. independence), as well as the history of "piracy" in the creative culture of the U.S. from its founding to the mid-20th century.

Some of the examples used to illustrate this are the stories of radio and cable television, and of three people whose names now grace three very large companies: Walt Disney, William Fox, and Eastman Kodak.  All of the examples show the legal issues in the company or industry's early days except Eastman Kodak, for whom the legal question of whether or not permission was required to capture and print a photograph had been answered earlier in the history of photography, to his great benefit.

The radio and cable industries, and Disney and Fox, were all what would now be considered "pirates" -- Walt Disney parodied current films in his short animations, and William Fox flouted Edison's patent on motion pictures, moving to California to escape the Motion Pictures Patents Company's legal arm -- and strong-arm tactics.

One generation's rebel is the next generation's tyrant...

"Property"

The second section discusses the nature of physical property (such as your car) vs. intellectual or creative property (such as a poem you wrote) and the kinds of things you can do with each. It also discusses how and why the law treats those two types of property separately.  "Property" is the longest part of the book, because knowing what property and property rights are and how they interact with the law is crucial to understanding how those in turn affect what we authors can do -- now, unlike in Walt Disney's time, derivative works, for example, are heavily restricted.

Starting with a summary of the major decisions in copyright law starting with the Statute of Anne, Lessig describes the legal arguments of the booksellers who claimed perpetual "copy-right" of Shakespeare's works and other popular books of the time through the story of Alexander Donaldson, a Scottish bookseller who did as Penguin Classics quite successfully does today -- created inexpensive reprints of books that were no longer protected by copyright. Like the Eldred case that Lessig argued to the U.S. Supreme Court, Donaldson argued his case in front of the House of Lords and asked them to interpret the meaning of the limits set out in copyright law.  Also like the Eldred case, the Donaldson case drew enormous attention throughout the country, with many people following it with great interest. Unlike the Eldred case, Donaldson won, and the ruling by the House of Lords effectively created the public domain in England and the Commonwealth.

The remaining examples chosen to illustrate this section all relate to the unique requirement of permission that intellectual property has which physical property does not. A documentary maker asking for permission to use a few seconds of a Simpson's episode that happened to be on a television in the background of one shot, another spending a year systematically hunting down permission from all of the people involved so he could use short clips from old movies in a retrospective compilation of an actor's work.

In his discussion of what "property" is, he discusses how four forces: law, market, architecture, and norms, affect creative property, and how those forces interact in sometimes unforeseen ways to create a completely different situation than intended. He also explains the two lives of creative work -- the first life, the commercial life, in which copyright protection is important, and the second life, where it is not. In a book's second life, it is bought and sold and traded and stored, and none of that makes any difference to the copyright owner. Television and film, radio, music, the internet... they have no stable "second life". Old films are literally rotting on their spools because those who have the desire to restore them don't have the money to pay for the right to make a copy, and those who have the money don't have the interest: the films are no longer commercially viable, they have finished their first life.

Finally, and of great interest to internet users, he discusses regulated, unregulated, and "fair" uses of copyrighted content -- and how, since simply reading something online involves making a copy, nearly all uses are now regulated. Enter computer code, and things like DVD's CSS (Content Scrambling System), "digital watermarks" and copy controls on music downloaded from internet music stores, and "copy protection" codes in digital ebooks. As Lessig points out in the book, when it comes to these technological ways of protecting copyrighted content, "[i]t is code, rather than law, that rules. And the problem with code regulations is that, unlike law, code has no shame." An ebook of a public domain text can, if the creator of the ebook forgot what was permitted under copyright law, restrict whether you have the ability -- not the right, the ability -- to copy and paste selections, or to print the book.

Puzzles

The third section describes the harms and constraints the current copyright law places on innovation, culture, history, education, and individuals. Especially now that computer technology makes it easier than ever to "rip, mix, and burn" new creations from old, the difficulty involved in getting permission to use parts of our culture is making many types of creativity prohibitively expensive.

While pointing out how ridiculously difficult it is getting to be legally creative, or even to legally enjoy the creativity of others, Lessig also shows that more people break the law. He likens it to other wars of prohibition: from prohibition of the 20s to the "war on drugs" currently underway, this "war" like the others, reduces the number of people performing some activity a little, but makes many more into criminals.

Balances

The fourth and final section analyzes the Eldred vs. Ashcroft case which Lessig argued all the way to the U.S. Supreme Court, and the reasons he believes he lost.

Following the description of the case, Lessig describes a new proposal that he developed that would, he hopes, bring some balance back to copyright law -- letting people get paid for their creative work, but letting works at the end of their commercial life pass into the public domain.

Afterword

The afterword is a very interesting section for those who have read the entire book and are getting rather worried about the direction copyright seems to be taking in the U.S. and in other countries that follow the U.S. lead. It describes what we can do individually, and what must be done legally, to restore some kind of balance to copyright law and creative culture.

The organizations listed in the afterword are growing in effectiveness and influence, and are easy to join, promote, and help. As more people learn about organizations like the Public Library of Science and the Creative Commons (one of whose licences Lessig chose for Free Culture) the more effective they will be.

Lessig's Proposal

The copyright system set out in the book is one that manages to comply with the requirements of international copyright law while at the same time providing both a way for works whose commercial life has ended to enter the public domain and for the copyright owner of older works to be found.

Current law requires no registration or notice of copyright status, which can make it very hard to find the owner of a 75-year-old creative work that you want to use. The owner may have died, the copyright transferred several times... with no registration, there is no place to find the owner of a copyright.

Lessig's proposed system is (in a very abbreviated and simplified form) that all creative works get automatic copyright as they do now, for 50 years. To gain the full protection of the current copyright system in the U.S., namely author's life + 70 years, the copyright holder would have to register the copyright. Registration in Lessig's system would be very easy and cost only a token amount; he suggests an "Amazon 1-click registration" and a $1 fee.

The logic behind this makes a lot of sense -- the majority of books, for example, have a "commercial life" of one year, if that, after which they are out of print and can only be found at used book stores and yard sales. A 50-year term for copyright protection will more than cover the commercial lives of the majority of creative work. For those rare but important pieces which are still being printed, which still have a commercial life after 50 years, the owner can register them as such. And even for those pieces which have finished their commercial lives but whose authors don't want them in the public domain, a few minutes and $1 is not a lot. If it isn't worth $1 and ten minutes to the author, it should be in the public domain.

This proposal of course hinges on registration being cheap and easy, and Lessig draws parallels with the internet's domain registration system -- one central registry that stores the master lists, and many registrars offering different incidental services around the primary service of getting an entry into that master list with your name on it. Different registrars have different levels of service, different prices, and different levels of customer satisfaction; being American, he is quite certain that allowing a competitive marketplace to grow around copyright registration will obviously lead to low prices and better service. (One wonders, however, that if he is correct in saying that the vast majority of works don't need even 50 years of protection, just how many companies will find it profitable to offer copyright registration services?)

How we authors fit into the picture

As I mentioned earlier in the article, the argument over copyright is typically framed as a "companies vs. pirates" issue, with both sides claiming to help authors and artists, but not giving us much thought beyond that. The media giants use "protecting the artists" as their reason for squeezing every last dime in profit, while those "pirates" who try to justify their morals claim to be giving the artists more exposure.

The reality, as Lessig mentions in the book, is that it is both, and neither, and somewhere in between. A chimera, in short.

We authors do need to sell our books to make a living so we can keep writing -- the media giants are right. And having our books shared freely on the internet does give us more exposure -- the "pirates" are right.

The problem arises when neither side seems capable of seeing an answer that encompasses both truths -- an answer like the Baen Free Library, where the authors who post a novel or two for free download have seen increased sales in their "back catalogue" of older books, or the Creative Commons which provides licences for authors like Cory Doctorow, whose first novel, Down and out in the Magic Kingdom, was released for free under a CC licence at the same time as it hit the bookstores, and sold much better than anyone had expected. (Interestingly, thanks to the explicit permission to copy the book to alternate formats given by the CC license Doctorow chose, his novel is available in nearly every e-book format known to man, including many that have such a small market that no commercial publisher would consider making -- like my personal favourite, the Apple Newton's NewtonBook format.)

Interested in reading it? You can get Free Culture at Amazon.com or direct from the author.