Criticism of Free Culture

Criticism of Free Culture - see Anti-Lessig Reader for other works.

Part I: “PIRACY”

CHAPTER TWO: “Mere Copyists”

Just as Disney could take inspiration from Steamboat Bill, Jr. or the Brothers Grimm, the photographer should be free to capture an image without compensating the source.

This quotation invites misinterpretation. These are two separate issues. The former has everything to do with the Public Domain, the latter concerns primarily expectation of privacy*. Especially within your framing. So you have one Progress Clause issue and another is a Privacy issue. If memory serves, the legal catch-phrase is 'reasonable expectation of privacy,' thus restrictions on using telephoto lenses to photograph people on private property. There is also a seemingly inane 'Public Figure' element to this too. (I haven't read any of the applicable court cases yet.)

-Sam

Part II: “PROPERTY”

CHAPTER TEN: “Property”

Market: Concentration Together

From Review of Free Culture by Chad Perrin

In the process of portraying the controversy over the state of copyright as a war between extremes, both of which are (he claims) horribly wrong, [Lessig] manages to make the copyright abolitionists look like cackling villains who would reduce all the world to dust, rot, and stagnation, a blasted post-apocalyptic wasteland in the realm of culture, by saying almost nothing about them apart from his strident claims he is not among them. He even goes so far as to say that if the only choice was between the extremes he describes he would choose the route of absolute, perpetual, multinational corporate control of all culture.

In the midst of all this, he utterly fails to make any meaningful argument at all that copyright abolition, or even a less restrictive copyright regime than he proposes, would cause any actual harm at all. He states that great harm would be caused, several times, especially when he makes sudden (and strangely inappropriate) apologies for having the temerity to oppose corporate market domination even a little, but the statements come with precisely zero supporting argument, and in fact many of his examples of how to improve things by reducing the autocratic control of culture strongly support copyright abolition.

[...]

If copyright abolition is zero on the scale of positions in this controversial area, Lessig's position is three, and absolute, perpetual, universal corporate monopoly is five, I could construct a stronger argument for any position between zero and five -- including Lessig's own position -- in terms of underlying justifications, consistency, coherence, and logical validity, in probably about three thousand words, than Lessig did in more than three hundred pages.

Part IV: BALANCES

CHAPTER THIRTEEN: Eldred

If anything Congress says is interstate commerce must therefore be considered interstate commerce, then there would be no limit to Congress's power. The decision in Lopez was reaffirmed five years later in United States v. Morrison.

If a principle were at work here, then it should apply to the Progress Clause as much as the Commerce Clause. And if it is applied to the Progress Clause, the principle should yield the conclusion that Congress can't extend an existing term.

Lopez is utterly irrelevant to Eldred, but Lessig is in disbelief that the Court did not make a connection. The Gun-Free School Zones Act was struck down because guns in schools have no conceivable bearing on the power of Congress to "regulate commerce among the several states"; in the words of the majority opinion, the law had "nothing to do with 'commerce' or any sort of economic enterprise" [1]. However, it's easy to see that extending copyright terms has at least "something to do" with securing the rights of authors.

If copyright law were somehow used to regulate guns in schools, or something equally absurd, then Lopez would be a relevant precedent, but a connection to the facts of Eldred simply does not stand to analysis. Lessig should not be so quick to accuse the Court of being disingenuous, as he does later in the chapter:

It had never even occurred to me that they could reconcile the two [Eldred and Lopez] simply by not addressing the argument. There was no inconsistency because they would not talk about the two together.

"They" wouldn't "talk about the two together" because there was simply nothing to talk about, not because members of the Court are not "consistent with their own principles." Lessig finishes the chapter berating himself for being too "idealistic"; but the problem wasn't his idealism, or the Court's so-called "pragmatism": it was Lessig's refusal to make a fairly obvious intellectual distinction. --Emiller 22:31, 19 February 2008 (PST)

Part V: CONCLUSION

AFTERWORD

Us, Now Rebuilding Freedoms Previously Presumed: Examples Rebuilding Free Culture: One Idea Them, Soon

1. More Formalities
   1. Registration and Renewal
   2. Marking
2. Shorter Terms
3. Free Use Vs. Fair Use
4. Liberate the Music—Again
5. Fire Lots of Lawyers

Lessig VS Levi-Strauss: How The Creative Commons Might Even Kill Creativity: http://cruel.org/other/lesslevi.html

From Review of Free Culture by Chad Perrin

I find it ironic, having read this book, that Lessig expresses awareness of the burdens of intricate, finicky, and often unpredictable copyright law as one of the biggest problems facing creative people today, then goes on to (co-)author and champion a bunch of licenses (the Creative Commons licenses) that -- apart from the CC0 license -- impose significant legal compliance burdens on licensees. Even the CC-BY (attribution) license, supposedly requiring nothing more than giving attribution to the copyright holder when modifying, deriving from, displaying/performing, and/or distributing a work, contains complex legalities that create shadowy little nooks and crannies that can trip up a licensee as well as a plague of license incompatibilities, and even contains some little-known restrictions that are not represented in the "human readable summary" of the license propagated by Creative Commons (such as the technology restriction clause). Lessig manages to contradict himself or undermine his own arguments at every turn, and often develops supposed solutions that create many of the same problems he purports to solve.