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[d@DCC] Crean and Lessig: Creators more similar than different?

From: Russell McOrmond <russell _-at-_>
To: General Copyright Discussions <discuss (at)>
Date: Mon, 29 Mar 2004 09:04:39 -0500 (EST)

This message is Copyright

  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
    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 

      [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 
                             - 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: <> 
 "Make it legal: don't litigate, use creative licensing" campaign.
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