Free Culture | Page 6

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 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