Free Culture | Page 7

I would be with Jack Valenti and the content
industry. I, too, am a believer in property, and especially in the importance of what Mr.
Valenti nicely calls "creative property." I believe that "piracy" is wrong, and that the law,
properly tuned, should punish "piracy," whether on or off the Internet.
But those simple beliefs mask a much more fundamental question and a much more
dramatic change. My fear is that unless we come to see this change, the war to rid the
world of Internet "pirates" will also rid our culture of values that have been integral to our
tradition from the start.
These values built a tradition that, for at least the first 180 years of our Republic,
guaranteed creators the right to build freely upon their past, and protected creators and
innovators from either state or private control. The First Amendment protected creators

against state control. And as Professor Neil Netanel powerfully argues,11 copyright law,
properly balanced, protected creators against private control. Our tradition was thus
neither Soviet nor the tradition of patrons. It instead carved out a wide berth within which
creators could cultivate and extend our culture.
Yet the law's response to the Internet, when tied to changes in the technology of the
Internet itself, has massively increased the effective regulation of creativity in America.
To build upon or critique the culture around us one must ask, Oliver Twist-like, for
permission first. Permission is, of course, often granted--but it is not often granted to the
critical or the independent. We have built a kind of cultural nobility; those within the
noble class live easily; those outside it don't. But it is nobility of any form that is alien to
our tradition.
The story that follows is about this war. Is it not about the "centrality of technology" to
ordinary life. I don't believe in gods, digital or otherwise. Nor is it an effort to demonize
any individual or group, for neither do I believe in a devil, corporate or otherwise. It is
not a morality tale. Nor is it a call to jihad against an industry.
It is instead an effort to understand a hopelessly destructive war inspired by the
technologies of the Internet but reaching far beyond its code. And by understanding this
battle, it is an effort to map peace. There is no good reason for the current struggle around
Internet technologies to continue. There will be great harm to our tradition and culture if
it is allowed to continue unchecked. We must come to understand the source of this war.
We must resolve it soon.
Like the Causbys'
battle, this war is, in part, about "property." The property of this war is not as tangible as
the Causbys', and no innocent chicken has yet to lose its life. Yet the ideas surrounding
this "property" are as obvious to most as the Causbys' claim about the sacredness of their
farm was to them. We are the Causbys. Most of us take for granted the extraordinarily
powerful claims that the owners of "intellectual property" now assert. Most of us, like the
Causbys, treat these claims as obvious. And hence we, like the Causbys, object when a
new technology interferes with this property. It is as plain to us as it was to them that the
new technologies of the Internet are "trespassing" upon legitimate claims of "property." It
is as plain to us as it was to them that the law should intervene to stop this trespass.
And thus, when geeks and technologists defend their Armstrong or Wright brothers
technology, most of us are simply unsympathetic. Common sense does not revolt. Unlike
in the case of the unlucky Causbys, common sense is on the side of the property owners
in this war. Unlike the lucky Wright brothers, the Internet has not inspired a revolution on
its side.
My hope is to push this common sense along. I have become increasingly amazed by the
power of this idea of intellectual property and, more importantly, its power to disable
critical thought by policy makers and citizens. There has never been a time in our history
when more of our "culture" was as "owned" as it is now. And yet there has never been a
time when the concentration of power to control the uses of culture has been as
unquestioningly accepted as it is now.
The puzzle is, Why?
Is it because we have come to understand a truth about the value and importance of
absolute property over ideas and culture? Is it because we have discovered that our
tradition of rejecting such an absolute claim was wrong?

Or is it because the idea of absolute property over ideas and culture benefits the RCAs of
our time and fits our own unreflective intuitions?
Is the radical shift away