April 26 , 2004 | When future generations look back at this unsettled era in which we’re transitioning from an analog to a digital society, the search bots may be impressed most by the works of Lawrence Lessig.

In his first book, Code and Other Laws of Cyberspace, dark forces were gathering, conspiring to use code as a form of privatized law to hem in the Internet and the potential of the digital revolution. Readers learned that the Net, far from impervious, could be subdued by rewiring its architecture. The premise seems obvious now, but only because Lessig’s 1999 ground-breaker connected the dots for us and set the scene for the struggles to follow.

His 2001 follow-up, The Future of Ideas, examined the kinds of innovation that could flourish online but for the intrusion of copyright law. Lessig’s second outing deepened our understanding of the forces in conflict: entertainment companies, rigid business models, and obsequious policy-makers set against tech innovators, risk-taking businessmen, and Netizens who still took their online freedoms for granted. In a style that was uncommonly accessible for this academic-turned-storyteller, Lessig tackled the public commons, the end-to-end principle, spectrum regulation, and other classic and modern precepts in an effort to get us to look at intellectual property in a new light.

Now comes Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. The book could be considered the finale in Lessig’s trilogy, a sort of Lord of the Rings for the intellectual property crowd.

The good professor lives up to the arguments he espouses by making the book available for free download on the Internet. Since its release in late March, Free Culture has become something of a remix phenomenon, with fans uploading audio versions of each chapter and others recirculating the work in new formats, such as wikis, iSilo and Mobipocket. No worries: It was released under a Creative Commons license.

Once again Lessig calls to our attention the increasing disconnect between law and digital culture. We see studio moguls, recording executives and Beltway insiders all seeking to impose what Lessig calls an “extremist” agenda by divorcing copyright law from its moorings in the Constitution as a balanced copyright bargain struck between creators and the public. Instead, we’re now seeing a new brand of intellectual property, where digital “property” rights are valued above all else and “piracy” is portrayed as the common enemy.

It is this framing of the issue, as one of property and law vs. piracy and theft, that itself is dishonest, as Lessig shows. Instead, the real battle is about control. As he writes: “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.” This has become the blood feud that is today tearing at the fabric of digital culture: Should the public’s right to participate in culture be sacrificed on the altar of protecting big media’s business models?

Lessig, a law professor at Stanford, serves as our historical tour guide, aptly demonstrating that each of the major entertainment industries — Hollywood, cable television, radio, the music recording industry — was itself guilty of piracy in its early years. Culture, it seems, has always wanted to borrow from what came before.

He also summons up moral outrage in pointing out the baseness of a legal system in which a teen faces a maximum fine of $1,000 if he shoplifts a CD from a record store — but faces statutory damages of $150,000 for downloading a single song without permission. He shows us the added financial burden the government placed upon Internet radio, which must pay recording artists for every Webcast of a song, even though terrestrial radio is exempt from such payments. The double standard has gone a long way toward smothering Internet radio in the cradle.

At times, Lessig steps out of the legal cocoon to wonder about larger social policies. He writes:

Why is it that the part of our culture that is recorded in newspapers remains perpetually accessible, while the part that is recorded on videotape is not? How is it that we’ve created a world where researchers trying to understand the effect of media on nineteenth-century America will have an easier time than researchers trying to understand the effect of media on twentieth-century America?

Near the end, Lessig takes us on an extended tour of Eldred v. Ashcroft, the landmark case involving the public commons that he argued before the Supreme Court and lost, 7-2, 15 months ago. He spends a bit too much time refining his arguments in an imaginary rehearing of the case rather than recounting personal details of what was taking place behind the scenes. In the end, the High Court caved to special interests, granting Congress the right to extend already lengthy copyright terms by another 20 years, without bothering to explain how such an act will offer incentives to Robert Frost, Ernest Hemingway, George Gershwin, Irving Berlin or other long-dead creators. In so doing, the court helped ignite a digital prairie fire that will doubtless grow hotter in intensity as digital technology becomes a pervasive part of our lives.

The giant of cyberlaw has a few prescriptions for this sad state of affairs. One is Creative Commons, the organization housed at Stanford that gives creators greater freedom over how to manage and share their digital handiworks. But a more fundamental solution lies in Lessig’s call for Congress to revisit the very basis of copyright. He recommends shortening copyright terms and, importantly, rewiring its fundamentals so that everything on the Internet does not automatically fall into the regulatory black hole governed by copyright law. Lessig suggests (as others have done) remixing the law so that copyright comes into play not when someone makes a copy of something for personal use but only when someone is engaged in profiting off others’ works — that is, true piracy.

His final suggestion is one of his best: Fire lots of lawyers.

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April 12 , 2004 | For years, all was peaceful in the house of Horovitz. Jed Horovitz, a 53-year-old New Jersey entrepreneur with sharply chiseled features and gleaming bald head, had been running a small video operation called Video Pipeline that took Hollywood films, created two-minute trailers to help promote them, and distributed them to online retailers such as Netflix, BestBuy, and Barnes and Noble, as well as public libraries. Then one day in 2000, the Walt Disney Co. sent a cease-and-desist order, charging that Horovitz’s company was violating Disney’s copyright by featuring portions of their movies online.

Horovitz was astonished that his seven-employee company–which, after all, had always showcased Disney films in a favorable light–was being bullied by a $90 billion behemoth. Horovitz decided to fight. He filed suit, asking for a declaratory judgment. Disney filed a countersuit–and quickly made clear they were playing for keeps. They asked for $110 million in damages.

During litigation, his lawyers advised Horovitz to keep quiet. But there was no reason he couldn’t make a movie about his ordeal. Earlier in his career he worked at Roger Corman’s low-budget movie factory, helping turn out such classics as Slumber Party Massacre 2 and Rock ‘n’ Roll High School Forever. Now he reached back to his documentary roots to tell his own story.

Originally, he planned to call his new first-person film Mickey and Me. But as he heard of other, similar incidents, he realized the story had a larger context. He and a videographer then spent several months and $15,000 canvassing the nation to create Willful Infringement, a call-to-arms about the clash between free expression and the ownership of ideas.

“My mother was a children’s librarian, and she imbued me with a world view that culture is a conversation, that you don’t own stories, you share them,” he tells me. “What has happened over the past few decades is that culture has become privatized to the point where we’re now facing a crisis. We need to remember we can still quote and sample, we still have fair use. As a free culture, we’re still allowed to do things without permission.”

In the film, artists, writers, musicians, scientists, and others parade across his lens. Many of them have been threatened, sued, fined, and put out of work in the name of copyright. Horovitz captures it all in a video vérité style popularized by Michael Moore in Roger & Me and Bowling for Columbine. At various points, the iconoclastic Horovitz appears on camera, appearing dumbfounded at the tales of a preschool director who said she received letters warning that the school could not show videos to her young charges without a license or hang protected cartoon characters on the walls without permission. He also interviews members of a Rolling Stones tribute band who perform under a legal cloud and husband-and-wife party clowns in Anaheim, California, who were warned not to create balloon animals for kids that looked too much like Tigger, Barney, or the Aladdin genie.

Mazen Mawlawi explains how he and his friends thought it would be cool to make their own twist on the Star Wars legend and so spent two years to make a 35-minute film short, set between episodes three and four, that staged new scenes, including laser sword fights and Jedi knights blasting into space. The tribute film was forced off the Internet by Lucasfilm attorneys.

Don Joyce of the counterculture band Negativland makes an impassioned defense of using “found sound” in albums and argues, “Art has to be able to use almost anything it wants to, without payment, without permission. I think that would not hurt the world one bit.” Joyce also observes, “The whole culture of folk music is impossible now because you can be sued for copying another song. But that’s what folk music was all about: hearing a song and making your own version. That was folk music for centuries, copying what people heard around the country. That’s now seen as illegal, criminal, uncreative, and a danger to corporate capitalism.”

Walter Leaphart, manager of the rap group Public Enemy, also turns up. Leaphart can’t understand why all of us are permitted to quote and sample each other in newspapers and magazines but not in records, where even a two-second homage to a classic song is now forbidden without permission. “We just flat out say from now on, no samples, because we don’t have the manpower or the legal power or the money to deal with those issues. I’m still cleaning up sample issues from 1991 from Public Enemy.”

One person who did not want to speak on camera was Alice Randall, who wrote “The Wind Done Gone,” a takeoff on the 1936 novel “Gone With the Wind” done from the slaves’ point of view. The heirs of author Margaret Mitchell, who died in 1949, sued to stop publication, and after a lengthy court battle it was released on free speech grounds. “She sounded fragile from her ordeal,” Horovitz says.

Months after Horovitz finished his film, a court ruled that Video Pipeline may not make its own online trailers for Disney movies because trailers are covered by copyright laws and fair use does not apply. Horovitz dissolved the company and laid off his employees in February.

Now Horovitz is figuring out what to do next. He has distributed copies of his movie to university law schools and other venues, but its central message has still not bubbled up into the mainstream media. Willful Infringement was featured as part of the “Illegal Art” exhibit in 2003.

“This all comes down to whether you believe culture should be bottom up or a top-down approach imposed by the corporations,” Horovitz says. “As it is now, copyright law has become the killing fields of culture.”

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