Free Culture | Page 2

if you don't
like the Internet's system, you can always flip off the modem.
1
Pogue was skeptical of the core argument of the book--that software, or "code,"
functioned as a kind of law--and his review suggested the happy thought that if life in
cyberspace got bad, we could always "drizzle, drazzle, druzzle, drome"-like simply flip a
switch and be back home. Turn off the modem, unplug the computer, and any troubles
that exist in that space wouldn't "affect" us anymore.
Pogue might have been right in 1999--I'm skeptical, but maybe. But even if he was right
then, the point is not right now: Free Culture is about the troubles the Internet causes
even after the modem is turned off. It is an argument about how the battles that now rage
regarding life on-line have fundamentally affected "people who aren't online." There is
no switch that will insulate us from the Internet's effect.
But unlike Code, the argument here is not much about the Internet itself. It is instead
about the consequence of the Internet to a part of our tradition that is much more
fundamental, and, as hard as this is for a geek-wanna-be to admit, much more important.

That tradition is the way our culture gets made. As I explain in the pages that follow, we
come from a tradition of "free culture"--not "free" as in "free beer" (to borrow a phrase
from the founder of the free- software movement
2), but "free" as in "free speech,"
"free markets,"
"free trade,"
"free enterprise,"
"free will," and "free elections." A free culture supports and protects creators and
innovators. It does this directly by granting intellectual property rights. But it does so
indirectly by limiting the reach of those rights, to guarantee that follow-on creators and
innovators remain as free as possible from the control of the past. A free culture is not a
culture without property, just as a free market is not a market in which everything is free.
The opposite of a free culture is a "permission culture"--a culture in which creators get to
create only with the permission of the powerful, or of creators from the past.
If we understood this change, I believe we would resist it. Not "we" on the Left or "you"
on the Right, but we who have no stake in the particular industries of culture that defined
the twentieth century. Whether you are on the Left or the Right, if you are in this sense
disinterested, then the story I tell here will trouble you. For the changes I describe affect
values that both sides of our political culture deem fundamental.
We saw a glimpse of this bipartisan outrage in the early summer of 2003. As the FCC
considered changes in media ownership rules that would relax limits on media
concentration, an extraordinary coalition generated more than 700,000 letters to the FCC
opposing the change. As William Safire described marching "uncomfortably alongside
CodePink Women for Peace and the National Rifle Association, between liberal Olympia
Snowe and conservative Ted Stevens," he formulated perhaps most simply just what was
at stake: the concentration of power. And as he asked,
Does that sound unconservative? Not to me. The concentration of power--political,
corporate, media, cultural--should be anathema to conservatives. The diffusion of power
through local control, thereby encouraging individual participation, is the essence of
federalism and the greatest expression of democracy.
3
This idea is an element of the argument of Free Culture, though my focus is not just on
the concentration of power produced by concentrations in ownership, but more
importantly, if because less visibly, on the concentration of power produced by a radical
change in the effective scope of the law. The law is changing; that change is altering the
way our culture gets made; that change should worry you--whether or not you care about
the Internet, and whether you're on Safire's left or on his right.

The inspiration for the title and for much of the argument of this book comes from the
work of Richard Stallman and the Free Software Foundation. Indeed, as I reread

Stallman's own work, especially the essays in Free Software, Free Society, I realize that
all of the theoretical insights I develop here are insights Stallman described decades ago.
One could thus well argue that this work is "merely" derivative.
I accept that criticism, if indeed it is a criticism. The work of a lawyer is always
derivative, and I mean to do nothing more in this book than to remind a culture about a
tradition that has always been its own. Like Stallman, I defend that tradition on the basis
of values. Like Stallman, I believe those are the values of freedom. And like Stallman, I
believe those are values of our past that will need to be defended