Free Culture | Page 6

others consumed, that was noncommercial
culture. When Noah Webster published his "Reader," or Joel Barlow his poetry, that was
commercial culture.
At the beginning of our history, and for just about the whole of our tradition,
noncommercial culture was essentially unregulated. Of course, if your stories were lewd,
or if your song disturbed the peace, then the law might intervene. But the law was never
directly concerned with the creation or spread of this form of culture, and it left this
culture "free." The ordinary ways in which ordinary individuals shared and transformed
their culture--telling stories, reenacting scenes from plays or TV, participating in fan
clubs, sharing music, making tapes--were left alone by the law.
The focus of the law was on commercial creativity. At first slightly, then quite
extensively, the law protected the incentives of creators by granting them exclusive rights
to their creative work, so that they could sell those exclusive rights in a commercial
marketplace.
8 This is also, of course, an important part of creativity and culture, and it has
become an increasingly important part in America. But in no sense was it dominant
within our tradition. It was instead just one part, a controlled part, balanced with the free.
This rough divide between the free and the controlled has now been erased.
9 The Internet
has set the stage for this erasure and, pushed by big media, the law has now affected it.
For the first time in our tradition, the ordinary ways in which individuals create and share
culture fall within the reach of the regulation of the law, which has expanded to draw
within its control a vast amount of culture and creativity that it never reached before. The
technology that preserved the balance of our history--between uses of our culture that
were free and uses of our culture that were only upon permission--has been undone. The
consequence is that we are less and less a free culture, more and more a permission

culture.
This change gets justified as necessary to protect commercial creativity. And indeed,
protectionism is precisely its motivation. But the protectionism that justifies the changes
that I will describe below is not the limited and balanced sort that has defined the law in
the past. This is not a protectionism to protect artists. It is instead a protectionism to
protect certain forms of business. Corporations threatened by the potential of the Internet
to change the way both commercial and noncommercial culture are made and shared
have united to induce lawmakers to use the law to protect them. It is the story of RCA
and Armstrong; it is the dream of the Causbys.
For the Internet has unleashed an extraordinary possibility for many to participate in the
process of building and cultivating a culture that reaches far beyond local boundaries.
That power has changed the marketplace for making and cultivating culture generally,
and that change in turn threatens established content industries. The Internet is thus to the
industries that built and distributed content in the twentieth century what FM radio was to
AM radio, or what the truck was to the railroad industry of the nineteenth century: the
beginning of the end, or at least a substantial transformation. Digital technologies, tied to
the Internet, could produce a vastly more competitive and vibrant market for building and
cultivating culture; that market could include a much wider and more diverse range of
creators; those creators could produce and distribute a much more vibrant range of
creativity; and depending upon a few important factors, those creators could earn more on
average from this system than creators do today--all so long as the RCAs of our day don't
use the law to protect themselves against this competition.
Yet, as I argue in the pages that follow, that is precisely what is happening in our culture
today. These modern-day equivalents of the early twentieth-century radio or
nineteenth-century railroads are using their power to get the law to protect them against
this new, more efficient, more vibrant technology for building culture. They are
succeeding in their plan to remake the Internet before the Internet remakes them.
It doesn't seem this way to many. The battles over copyright and the Internet seem remote
to most. To the few who follow them, they seem mainly about a much simpler brace of
questions--whether "piracy" will be permitted, and whether "property" will be protected.
The "war" that has been waged against the technologies of the Internet--what Motion
Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist
war"
10--has been framed as a battle about the rule of law and respect for property. To
know which side to take in this war, most think that we need only decide whether we're
for property or against it.
If those really were the choices, then