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Sunday, May 02, 2004 - Page updated at 12:00 A.M.

Book Review
'Free Culture': When copyright law and technology collide

By Caroline Benner
Special to The Seattle Times

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Copyright law. Now that I've got your attention, here's hotshot legal scholar Lawrence Lessig's latest big thoughts on it: Copyright law has changed dramatically over the years, and these changes threaten our freedom to create, he argues in his new book, "Free Culture."

In a vigorous effort to combat digital piracy, Congress has extended copyright protection far beyond its original mandate of keeping publishers from reproducing work without the permission of its creators. Among many changes is the development that copyright law now gives creators control over not only their original work but all copies of their work, as well as all work that can be derived from it.

Enter digital technology, where almost everything you touch is a copy of someone else's work. You don't have the original electronic ones and zeros generated when a creator put text to screen, recorded a beat, or snapped a photo. "Copy and paste," "forward," "save as," "download": Each of these and many other common instructions tells your computer to work with duplicates of those bits of creativity. Now, we've got a situation where presumably a whole lot of what computer users routinely do online is regulated by copyright law. This, Lessig claims, is something legislators who enacted copyright law never considered.

As I absorbed Lessig's argument, my mind started to whir. My mother likes to clip and mail articles to me from The Wall Street Journal. Say she moved this activity online and copied and pasted the articles into e-mails to send to me. The Journal would have no legal basis for objecting to her snail-mail campaign, but perhaps the paper could claim she violated its copyright with her e-mails.

"Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity"

by Lawrence Lessig
Penguin Press, 345 pp., $24.95
Wait a minute, it seems fair that she be allowed to copy-paste and e-mail articles if she could clip and send them, and indeed she could claim this is legitimate by citing "fair use" — the legal doctrine that allows use of copyrighted works without permission in ways public policy deems fair. Trouble is, what constitutes fair use is up for interpretation.

While my mom might have nothing to worry about if she e-mails the copied articles just to me, what if she provided this e-mail service to 50,000 people? Is this fair use or a copyright violation? Would the Journal's lawyers bother her? What if she charged $1 for her e-mails? Now would the lawyers care? She may have a bit of a problem if they did: The penalties for provoking lawyers with copyright violations are very severe, Lessig notes. Just ask the four students whose file systems were used to share music prompted recording-industry lawyers to ask them for $98 billion worth of remorse.

So what are the practical effects of these changes in law and technology? What if would-be creators of sites that mix audio and images to criticize politicians, or that collect newspaper articles on scientific topics, or that offer plot summaries from long-ago TV shows, were to think twice? With these examples, Lessig says, and thousands more like them, there's the potential for real creative losses.

All creativity draws to some degree on other people's ideas, and digital technology gives us unprecedented opportunity to access, share and build on others' work. You can do amazing things with technology, Lessig says. However, you can't be sure you are doing them legally. "The consequence of this legal uncertainty, tied to these extremely high penalties is that an extraordinary amount of creativity ... will never be exercised," he claims.

Lessig makes a convincing case that copyright was never intended to regulate in the way it does today, and that rethinking it so that pirates are punished, artists and authors are paid and everyone else is free to create would be wise.

One only hopes he has overestimated the gravity of the threat the law poses to creativity: As he himself notes, he has "told a dark story. The truth is more mixed." But this dark story will make the mind whir, and this is what Lessig wants. And his argument — made entertaining and accessible through attention-grabbing anecdotes and conversational prose — is indeed forceful enough to get the reader thinking about copyright law.

Copyright © 2004 The Seattle Times Company

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