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[d@DCC] Crean and Lessig: Creators more similar than different?
From: Russell McOrmond <russell _-at-_ flora.ca>
This message is Copyright http://creativecommons.org/licenses/by/1.0/ On the weekends I am now taking time to do some reading. This means I get away from the computer, grab a "real book" (not an e-Book ;-), and dive into that other world. I printed out the first 15 pages of Lawrence Lessig's new book, Free Culture, which had the introduction which just encouraged me more to want to buy the book in hardcover format. I then continued with the other book I am reading. Unfortunately my mind never got into the book as I kept seeing patterns of similarity between what I had been reading, and what I am doing in "real life". Consider the following two passages: At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards." For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? ... The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional "taking" of property without compensation. The Court acknowledged that "it is ancient doctrine that common law ownership of the land extended to the periphery of the universe." But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court, [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. "Common sense revolts at the idea." - Lessig in the introduction to "Free Culture" Industrialization did not come about in Europe without an upheaval either. It coincided with the alienation of large numbers of people from the land they have lived on for centuries, and triggered a mass migration to cities and towns, and to jobs in factories and mills. The process had been going on for a long time by the nineteenth century, if you consider the enclosure of the commons, the draining of the fens, and the cutting down of forests as part of it. In the British Isles and elsewhere in Europe, the peasant classes who had subsisted on public lands up until the Elizabethan times were driven off as the arrangement of common ownership and the collective use of resources was eliminated. The Tragedy of the Commons has been mythologized as a moral and mathematical dilemma illustrating the flow in the concept of collective use -- the conflict between the individual desire to put more cattle out to graze in the common pasture, and the finite capacity of the commons to support animal life. However it is theorized, though, the privatizing of land in Europe was a tragedy of body and spirit, breaching in relationship of individuals with communities, and societies with their traditional territories. It also challenged long standing moral indictments. Today we forget that there were the widely held proscriptions against the new technologies of resource extraction when they were first invented in the Industrial Revolution, and that the discussion of how far science should be allowed to go did not begin with the atomic bomb, much less Dolly the cloned lamb. Those who mined the earth for metals in the eighteenth century had to overcome the widespread conviction that to do so was to invade the womb of Mother Earth. The best European minds of the day, notably Francis Bacon's, were applied to find a justification for the new techniques, and, in the end, the sanction against them dissolved into its opposite -- approval of all manner of environmental interference for the sake of improving the human condition. Passive, permissive nature became the crucible of the great scientific experiment, and, in their fashion, so did the colonies. - Susan Crean in The Laughing One (P91-93) As someone who considers myself a cyber-citizen, it is hard to not see what the cultural monopolists are trying to do in terms any less dramatic than that of an invading force. Susan's book reminds Canadians of our dark past, but does it adequately alert fellow creators to our possibly dark future if we repeat our historical mistakes? As Lessig points out, the changes to cultural policy can not be 'shut off' by not being part of the Internet. While a cyber-citizen like myself will feel the changes first, as the peasant classes fully felt the changes before the natives in the "new world", this does not shield offline aspects of our modern culture from the radical changes underway. If you don't like the way that the cultural feudalists are trying to change the Internet's system, there is no way to flip off the modem! What Susan wrote about was the time of the beginning of the Industrial revolution and the privatization of the commons and the privatization of the domain of the public. My theory on much of what is happening today in cultural and industrial policy is that it is a similar battle. This battle is happening at what should be allowed to be the exit of the Industrial era, with the opponents of progress seeking further privatization of the commons and the privatization of the "public domain" than ever before possible. An important dynamic is that many creators are on the wrong side of this battle. They have thus far not realized that they have aligned themselves with the very opponents of advances in the possibilities of creativity. These opponents include powerful media empires, so their ability to manipulate audiences and convince creative citizens as well as most other citizens of their case should be recognized. An important tool of the political opponents of creativity has been to cast the debate as being a battle between copyright holders and "pirates". This debate makes a claim that big-media companies and individual creators are aligned against a foe, but doesn't come out and name the foe. The foe is the general public, citizens which happens to include the creative citizens themselves. There are many of us that feel the battle is very different. It is a battle between citizens (creators and their audiences together) and a form of a "permission culture" representing privatization of our culture to levels less democratic than the feudalism of the past. Lessig writes: Like Stallman's arguments for free software, an argument for free culture stumbles on a confusion that is hard to avoid, and even harder to understand. A free culture is not a culture without property; it is not a culture in which artists don't get paid. A culture without property, or in which creators can't get paid, is anarchy, not freedom. Anarchy is not what I advance here. Instead, the free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with rules of property and contract that get enforced by the state. But just as a free market is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written. It is my hope that citizens will be able to come together and realize the nature of this battle. We need to ensure that creators recognize the need to align themselves with those protecting citizen's rights, which includes creators' rights, rather than fighting alongside the cultural feudalists which may give lip service to the creators as Industrial labour, but are most interested in revoking creators' rights. How long will it be for Susan Crean and other members of the Writers Union, CRA, and other groups to realize that they have far more in common with groups like the FSF, OSI and Creative Commons than they do with many of the Intermediary organizations they lobby governments alongside today? Susan Crean asks us how we, as creators, are to get paid in various models I have to ask Susan the same question. If copyright term is extended for the heirs of creators, the thin-edge of the wedge for extending copyright (term and what it includes) for many more non-creators, how are creators to get paid? The assumption seems to be that strengthening copyright helps creators, but I see no logical evidence of this as anything that too-far broadens the copyright of creators of the past (alive or dead) harms the rights of living creators today. Which is more important -- that the families or employers or dead (or just underemployed) creators are able to get royalty payments, or that living creators are able to create new works? These two are becoming increasingly at odd with each other and while I know where my beliefs are (with the creators, living and especially the self-employed!), I think we need to ask for clarification from the Writers Union and CRA. Deserving, Lessig gets the last word: A free culture supports and protects creators and innovators. It does this directly by granting intellectual property rights. But it does so indirectly by limiting the reach of those rights, to guarantee that follow-on creators and innovators remain as free as possible from the control of the past. A free culture is not a culture without property, just as a free market is not a market in which everything is free. 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. -- Russell McOrmond, Internet Consultant: <http://www.flora.ca/> "Make it legal: don't litigate, use creative licensing" campaign. A modern answer to P2P: http://www.flora.ca/makelegal200403.shtml Canadian File-sharing Legal Information Network http://www.canfli.org/ -- For (un)subscription information, posting guidelines and links to other related sites please see http://www.digital-copyright.ca
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