Free Culture | Page 8

from our tradition of free culture an instance of America
correcting a mistake from its past, as we did after a bloody war with slavery, and as we
are slowly doing with inequality? Or is the radical shift away from our tradition of free
culture yet another example of a political system captured by a few powerful special
interests?
Does common sense lead to the extremes on this question because common sense
actually believes in these extremes? Or does common sense stand silent in the face of
these extremes because, as with Armstrong versus RCA, the more powerful side has
ensured that it has the more powerful view?
I don't mean to be mysterious. My own views are resolved. I believe it was right for
common sense to revolt against the extremism of the Causbys. I believe it would be right
for common sense to revolt against the extreme claims made today on behalf of
"intellectual property." What the law demands today is increasingly as silly as a sheriff
arresting an airplane for trespass. But the consequences of this silliness will be much
more profound. The struggle that rages just now centers on two ideas: "piracy" and
"property." My aim in this book's next two parts is to explore these two ideas.
My method is not the usual method of an academic. I don't want to plunge you into a
complex argument, buttressed with references to obscure French theorists--however
natural that is for the weird sort we academics have become. Instead I begin in each part
with a collection of stories that set a context within which these apparently simple ideas
can be more fully understood.
The two sections set up the core claim of this book: that while the Internet has indeed
produced something fantastic and new, our government, pushed by big media to respond
to this "something new," is destroying something very old. Rather than understanding the
changes the Internet might permit, and rather than taking time to let "common sense"
resolve how best to respond, we are allowing those most threatened by the changes to use
their power to change the law--and more importantly, to use their power to change
something fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because most of us really believe
in these changes. We allow it because the interests most threatened are among the most
powerful players in our depressingly compromised process of making law. This book is
the story of one more consequence of this form of corruption--a consequence to which
most of us remain oblivious.


"PIRACY"
Since the inception of the law regulating creative property, there has been a war against
"piracy." The precise contours of this concept, "piracy," are hard to sketch, but the
animating injustice is easy to capture. As Lord Mansfield wrote in a case that extended
the reach of English copyright law to include sheet music,
A person may use the copy by playing it, but he has no right to rob the author of the
profit, by multiplying copies and disposing of them for his own use.
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Today we are in the middle of another "war" against "piracy." The Internet has provoked
this war. The Internet makes possible the efficient spread of content. Peer-to-peer (p2p)
file sharing is among the most efficient of the efficient technologies the Internet enables.
Using distributed intelligence, p2p systems facilitate the easy spread of content in a way
unimagined a generation ago.
This efficiency does not respect the traditional lines of copyright. The network doesn't
discriminate between the sharing of copyrighted and uncopyrighted content. Thus has
there been a vast amount of sharing of copyrighted content. That sharing in turn has
excited the war, as copyright owners fear the sharing will "rob the author of the profit."
The warriors have turned to the courts, to the legislatures, and increasingly to technology
to defend their "property" against this "piracy." A generation of Americans, the warriors
warn, is being raised to believe that "property" should be "free." Forget tattoos, never
mind body piercing--our kids are becoming thieves!
There's no doubt that "piracy" is wrong, and that pirates should be punished. But before
we summon the executioners, we should put this notion of "piracy" in some context. For
as the concept is increasingly used, at its core is an extraordinary idea that is almost
certainly wrong.
The idea goes something like this:
Creative work has value; whenever I use, or take, or build upon the creative work of
others, I am taking from them something of value. Whenever I take something of value
from someone else, I should have their permission. The taking of something of value
from someone else without permission is wrong. It is a form of piracy.
This