January 9, 2003  ·  Lessig

I’ve been hiding away in Japan working on a book that’s tentatively titled “Free Culture”–”free” as in the verb. I’d be grateful for any help with two questions that are continued below.

(1) Seeking an analogy: I’d love to find an example from popular culture (e.g., at TV show, or famous movie, or cartoon) that would be a useful analogy for an idea that is hard to get across. Here’s the hard-to-get-across version: I’m trying to give people a sense of how the reach of copyright has changed for totally unintended reasons. Because the internet is a digital network, every action on the network is a copy; because copyright law gets triggered whenever there is a copy, it follows that every action on the network is potentially subject to copyright law.

The analogy would be to a story where some slight technical change happens, and it has a radical change for some unrelated feature. I’ve a vague sense of a batman episode, where the villain drops a chemical into the water and the world changes dramatically. Something like that. I tried an analogy in my last book which is good but old: the framers of the constitution gave Congress power over “interstate commerce,” intending that to leave lots of exclusive legislative jurisdiction to the states; but because the economy has changed, and the range of commerce “in or affecting” interstate commerce has increased, the scope of exclusive jurisdiction in the states has shrunk.

I’d love a sexier example of the same form: technology changes, and the very nature of some unrelated feature changes radically.

(2) copyright law’s effect on weblog space:

I’ve got some nice examples of how copyright law has interacted (to good and bad ends both) with weblog space. But I’d be grateful for any examples of weblog content being restricted or supported by copyright law.

Thanks in advance. You can email me or post below.

  • http://www.retrovirus.com/vector/ Joe Hughes

    villain drops a chemical into the water and the world changes dramatically

    Perhaps you’re thinking of the ice-nine in Kurt Vonnegut’s Cat’s Cradle?

  • http://www.aaronsw.com/ Aaron Swartz

    Can you be more clear about the argument in 1? Are you saying:

    a. …that the act of routing copyrighted packets a network is copyright infringement? (Does this mean the phone company infringes when someone sings Happy Birthday over the phone?)

    b. …that by downloading something, you’re making a copy? (Wouldn’t it make more sense to say the server makes a copy and sends it to you via the network by a, above?)

    c …that because the network makes perfect copies, it’s just as easy to make a copy of something than to listen to/watch a “stream” of it? (How is saving the bits to disk any different than starting up a tape/video recorder?)

    d. …that because computers need to buffer something to play it, they have to make a copy in RAM (and possibly virtual RAM on disk) and that’s copyright infringement? (Then is looking at something copyright infringement too, because your mind buffers it?)

    e. …something else? (If so, please say what it is.)

    Currently it’s very unclear.

  • http://www.blackmask.com David Moynihan

    How about Dune’s “Water of Life”–one changed molecule affects the whole batch?

  • http://radio.weblogs.com/0100841/ Mark Alexander

    For number 1: How about the 1st Back to the Future movie. Even after McFly gets his parents back together, because he visited the past, his present is changed.

  • Khalid Yaqub

    Instead of “technology changes, and the very nature of some unrelated feature changes radically” perhaps it’s a bit clearer to say “technology changes, and the meaning of some pre-existing artifact (preferably man-made but non-technological) changes radically.”

    Movies like “Back to the Future”, “The Terminator”, or even “Star Trek IV” (transparent aluminum and whales) don’t exactly capture the point that new technology can radically alter the meaning/scope of some *past* concept.

    The closest I can think of at the moment is “Blade Runner”, where incremental advances in robotics (first developed as pets, a la Sony’s Aibo [http://www.aibo.com], then as beasts of burden, then as soldiers and sex objects, and finally as Deckard the replicant hunter himself) lead to a rethinking of the nature of being human. Too esoteric, perhaps.

    Something tells me there’s got to be a lot of stories involving a technological change spurring on a radical new application of say, a major religion and its texts. Have to ponder on that a bit more…

  • http://mpt.phrasewise.com/ Matthew Thomas

    I’d love a sexier example of the same form: technology changes, and the very nature of some unrelated feature changes radically.

    It may not be a good example for a book which happens to be by Lawrence Lessig, but I immediately thought of the following extract from Neal Stephenson’s In the beginning was the command line:

    Lawrence Lessig, the whilom Special Master in the Justice Department’s antitrust suit against Microsoft, complained that he had installed Internet Explorer on his computer, and in so doing, lost all of his bookmarks — his personal list of signposts that he used to navigate through the maze of the Internet. It was as if he’d bought a new set of tires for his car, and then, when pulling away from the garage, discovered that, owing to some inscrutable side-effect, every signpost and road map in the world had been destroyed.

    — mpt

  • Chris Yu

    I’d say it’s like the impact of Windows Solitaire on what the role of an office computer is. (the tech change was the mouse)

    When Microsoft Windows borrowed the notion of mouse for their interface, they also introduced Windows Solitaire as a way to teach people the metaphors of clicks, double-clicks and drags.

    For the masses, the unintended consequence is computers suddenly became a source of time killing in addition to productivity. From that day forward, if you gave someone a computer, it meant that they could very easily waste lots of time with it. It certainly isn’t the first computer game in the office (remember the old PC games where a ‘boss’ key made the screen look like Lotus 1-2-3) but the impact was profound and may have given rise to the ubiquity of web surfing/web monitoring in the office.

    Other examples…the car radio’s impact on what morning and afternooon radio sounds like (traffic reports, news, ‘personalities’ chattering), affordable photography causing people to smile instead of pose with a serious/dignified expression and hence need cosmetic dentistry, effective contraception’s effect on the role of women in the workplace…

  • http://sethf.com/ Seth Finkelstein

    I think what you want is less at “technology changes, and the very
    nature of some unrelated feature changes radically.”, and more “as
    technology evolves, a ruleset which fit the old technology with
    moderate restriction is now radically expanded”

    It’s a social ruleset though, not the technical nature of the
    thing. That is, what you want is not Ice-9, where one fragment of the
    special ice in the water changes the ocean. Rather, it’s much more
    like the episode of the original Star Trek series where the
    Enterprise comes across a world where war is fought by computers,
    determining the death and damage. Then the Enterprise is
    told, according to, umm, the “Definite Minimal Computer Action”, that
    they’ve entered hostile territory, been declared a war casualty,
    please kill yourself promptly. This isn’t a very good analogy, since
    it’s not a change in scope. But it’s closer, working to idea of rules
    which previously worked are being extended into new spaces.

  • http://www.kocharhook.com/nick/ Nick Kocharhook

    (I know very little of the actual history here, but it can’t be too hard to discover the timeline.)

    How about oil? Once upon a time, People used sperm whales for lamp oil. There was some period of progression to kerosene. Then the industrial revolution happened and the Internal Combustion Engine was perfected, and suddenly oil became the most important thing anywhere. (Again, this timeline is probably off — I need to get to class.)

    The part that you might want to focus on is the Arab states in the Middle East and other oil-exporting countries like Argentina. They went from relatively little international attention (I think?) to members of OPEC, able to control prices on just about everything in industrialized countries all around the world. (See: Arab Oil Embargo, 1970s)

    I don’t think you find many more concrete examples of a technological change leading to undue influence.

    Good luck with your book; I loved the first two.

  • Neil Kandalgaonkar

    > (2) copyright law’s effect on weblog space:

    Recently, some dimwit RSS-syndicated his site, but was shocked to discover other people were mirroring the content, and asked that people stop. He didn’t threaten legal action specifically, but muttered something about intellectual property.

    Jamie Zawinski has a good discussion of the incident in his LiveJournal blog.

    The net effect seems to be: cluestick applied, but a slight chill on the whole syndication free-for-all.

    jwz predicts the death of RSS. But to me, this incident is a good demonstration of the need for Creative Commons licenses to automate permission-granting.

    Oh, and the subsequent discussion turned up a similar incident at Radio Userland too where a writer didn’t realize his blog was RSS’ed by default.

  • Mike Gehm

    I’ll take a stab at #1 with two examples, one pop-culture, one a real-effect:

    Pop-culture: It’s a Wonderful Life–a lot more gets changed then George Bailey counted on when he made his wish.

    Real: On E-bay, one can almost always get a deal on an item by searching for a misspelled version of the name (eg. “Plam Pilot”). The minor juxtaposition of characters makes the item less likely to be correctly found by bidders looking for a particular item. Hence, there’s less competition for that item and a correspondingly lower price than for identical items without the misspelling.

    Good luck with the book.

  • Rebecca Tushnet

    There’s always Nancy Kress’ Sleepless, as set forth in her Hugo and/or Nebula-winning story “Beggars in Spain” (expanded to a novel and then more books), in which a genetic modification eliminating the need for sleep has the side effects of increasing health, longevity and possibly general intelligence, to the point that the whole world is transformed, and not necessarily in a good way. Or Star Trek’s “City on the Edge of Forever,” where saving one woman’s life leads to Nazi triumph and the nonexistence of the United Federation of Planets. It also looks as if Buffy the Vampire Slayer’s storyline this year is similar: bringing Buffy back to life changes the good/evil balance elsewhere, allowing a Really Big Bad to come out and play.

    Though you really want something where some preexisting technical/legal feature becomes incredibly important because of some other, unrelated change. Judicial review after incorporation of the Bill of Rights against the states? The concept of reproductive privacy/freedom of choice once genetic modification & cloning become possible? (Even abortion fits in, because it became safer and more effective over time.) I wonder whether air conditioning, designed at first for industry but ultimately used to transform work & settlement patterns, could work.

  • Olof

    If you really want a sexier example, consider the recent paper where information (potentially copyrighted) is stored genetically:

    If this were possible in humans, then human reproduction would be subject to the DMCA, wouldn’t it?

  • http://www.bricoleur.org/ alex

    One example is the way in which technology has redefined analysis of the fourth amendment application to eavesdropping as the state has gained technological prowess. The Supreme Court’s initial misstep in that area and eventual recovery forty years later provides some hope (though illusory) that a similar path can be tread in copyright.
    Another good example is the way in which public records archives change in the google era (or usenet after search or e-mail lists once their archives are posted to the web). Small technological change changes the meaning of an act of communication.
    I think you may be going for the idea that a technological change in a method of doing something may change which law applies, thereby bring an activity inside or outside of the bounds of a law even though the “activity” (in the sense of what a person wanted to “do”) hasn’t changed.
    A less distant example of that might be the way access to a cultural good has become mediated by access control devices so that reading, editing or writing becomes subject to the DMCA withougt any difference being felt by the reader, editor or writer.
    Another near example is the copyright status that attaches to NFL games because of their fixation, before fixation, no copyright, after yes. But to the guy in the stands watching the game, there is no difference.
    Finally, you might talk about legal regimes, countries and line drawing. On the border between the US and Canada even when you are doing the same thing different laws apply. I could see this playing out well in the book because you could talk about “copyland” with its own set of laws that don’t exist in non-copyland.
    -Alex (bricoleur)

  • mary hodder

    How about an analogy about food production and the effects of technology as compared to free culture? I have been experimenting with this in my own writing, because I think that food is very personal and such a pleasure (or not, in the case of square tomatoes), and is something we can relate to and spend time thinking about.

    For your particular work, thinking about how one small change is like a drop of water in a still pool, rippling out, the food production idea might work. Food, good food, like good cultural development, is not scalable for mass production, unless certain efficiencies are put into place, like AgraBiz and copyright protections extended forever. In the short term, it all seems okay, but the long term effects are subtly corrosive to our cultural experience.

    With small incremental changes in the agriculture business, and genetically modified foods, attempting to make foods that pack and travel well or are resistant to some insect (think fish genes in potatoes, or straight bananas), we get food that tastes bland and hard, and in the US, regarding produce, is not interesting because each category might have one or two varieties. Example, in Safeway, you might get two varieties of tangerines right now, at the height of the season. But shoppers at the Berkeley Bowl will get 20 different varieties, many of which are organic, that have vivid, intense flavors, different colors, sizes and shapes.

    Also, we all know when we buy conventional produce that we might be getting GM food, but people are usually shocked when they find out that 90% of conventionally sold foods are GM in the US, including packaged foods like chips, crackers, cereals, and anything with dairy, rice, corn, wheat, potatoes, peanut products, etc. Companies like GM foods in part because they can control the annual production through patents and contracts. GM and other altered food products are everywhere, and yet we sort of go about our lives knowing our food experience isn’t as tasty or healthy or good (not to mention detramental in the long term?) as it might be but not really knowing what to do about it, so we don’t focus on how much we have lost to the subtle corrosion due to the ag biz efficiencies over the years in the current food production system, etc.

    The point is, people have slowly accepted less in small increments, much the way we have accepted less free culture, in exchange for packaged, massaged culture spoon fed to us by companies with lots of copyright protected product, as we have accepted the slowly closing window of fair use, and the resulting loss of innovation and cross-pollination that leads to more limited culture.

    I don’t know if the logic will really hold all the way through an argument made using this analogy, but maybe it’s worth experimenting with it.


  • http://baitsell.com Keith Baitsell

    Since there appear to be several literary takes on #1, how about Hemingway’s The Sun Also Rises. Everything’s different for Jake Barnes after his injury. Might be hard… difficult to use as an effective analogy for obvious reasons.

  • http://www.pawlo.com/ Mikael Pawlo

    Speaking of copyright “thingies” I came across one very interesting phenomenon this week. I wrote a column on games and rating for the Swedish branch of IDG (www.idg.se). In this column I referred to an article I wrote in a Swedish magazine on home-computers, Datormagazin, back in 1989 (!). This article was published in the op-ed section and was not solicited by the magazine. Some readers of the http://www.idg.se column wanted to read my article from 1989 – just for fun. I gave one reader – who was in possession of the magazine – permission to scan my text and publicize it on the Internet. However, IDG received a cease-and-desist letter from Medstroms – a competitor and current proprietor of Datormagazin. Medstroms threatened with legal action on grounds of copyright infringement, should IDG link to my article. IDG removed all references to the article and stated in the open comments forum in connection with my column that no one should link to any such material.

    I really do not have the time and interest to pursue this further and IDG just wants to avoid the hassle, but is this not exactly the core of the new problem?

    Obviously, Medstroms has no right to my intellectual property in this case. It had a right to publish one copy of my work in the magazine back in 1989, but since we had no agreement regarding the acquisition of the work I find it hard to believe that the magazine can claim any other rights today. The strangest thing, though, is that the work is more or less useless today. The work as such is just a satire on the Swedish policy in the 1980:ies regarding computer games. It could have been considered funny in 1989, but today you do not even know the characters or games featured in that text. So why send a cease-and-desist-letter? To fight of competition, obviously. Is this what copyright law is about these days?

    Okay – this was too long and not even on topic. So help me God .-)



  • http://www.cryptovb.com Richard Bondi

    Taking C. Yu’s contraception idea above one step farther:

    Before the pill, a strong and pervasive argument against sex for anything other than procreation was that it almost inevitably led to pregnancy, and all the (virtuous) responsibilities associated with that constrasted with the irresponsibility of casual sex. Sex was largely taboo.

    After the pill, and before HIV, it quickly became very difficult to find anything wrong with casual sex. Soon sex was everywhere, together with turbulent moral, cultural, and legal confusion and changes that continue to this day.

    Copyright is analogous to sex, with the Web in the role of the pill. Before the Web, it seemed clearly wrong to copy. The Xerox machine made things a little blurry, but not much. Now with the Web, turbulent legal, cultural, and moral change has begun.

    I’m not sure you’ll find a sexier analogy than this ;).

  • http://earlyalgebra.terc.edu David Carraher

    “Bacteria Sued for Replicating and Mutating”
    A genetically modified strain of bacteria was named as a co-defendant in a bizarre case brought before a Mississippi federal court Thursday night. Dow Chemical, creator of the strain and owner of the patent, had been selling the bacteria by the pound to municipalities throughout the nation as a means of removing biowaste from their sewage effluents. The patent clearly states that the bacteria are incapable of self replication–a feature that was meant to discourage municipalities from purchasing a small amount of bacteria and thereafter growing their own supplies. Dow alleges that a recent shipment of bacteria sent to the town of Mercaptan began to reproduce in large quantities. It is not clear what lead to the change in properties of the strain; the suit brought against Mercaptan and the methanogenic microorganisms alleges foul play by the board of directors of the town. Since reproduction was clearly prohibited in the purchase agreement between Dow and the Mercaptan, Dow obtained a restraining order against the town requiring them to return all bacteria purchased. The Health Commissioner responded by returning precisely one pound of bacteria–the amount originally purchased by the town. Judge Learned Hind was asked by the plaintiff to issue a restraining order to the bacteria against any form of reproduction. However, there was some dispute about the identity of the bacteria remaining in the Mercaptan sewage system: because they had undergone genetic mutation during replication, it was not clear whether they could be considered bound by the conditions of the original sale. As if this were not enough to burden the judge, a spokesman from Mercaptan accused Dow of making a sewer delivery of the sub poena to the bacteria.

  • David Brownridge

    Why not a less dramatic analogy, but a little closer to home: pre-internet the cost to a direct marketer of sending each item was of a similar order of magnitude to the cost to the victim of receiving and discarding it. So there was a natural limit on volume of junk mail. The arrival of email changed the economics, and now we have spam — until we can implement some way of shifting the economics of the situation again.

    One might use other examples of ecological catastrophes, but I rather like the email one.

  • leslie

    I would add writing. The mere marks on a page give rise to mutual understanding and communication and perhaps miscommunication too. Fast forward to this blog and you see how your desire to write more and communicate your views is advanced by marks from the keyboard to the screen. If it weren’t for computers, internet, blogs, how would you request and receive input from unknown participants? How many times have you read something and had it cause you to react a certain way?

    And the Star Trek episode “Evolution”, where Wil Wheaton’s character Wesley creates/discovers that the nanotechnology he is working with has the capacity to “think” and evolve. Just viewing this episode made people think about the possibilities of nanotechnology and in real life, there was great exposure for the research now being done. (or is this art imitating life imitating art?)

  • moof

    We Can Remember It For You Wholesale, except in reverse.

    Every week, after going about your day, all your belongings, all your notes, and all your memories are scrubbed clean of any copyrighted material unless you buy a license. Some things don’t even have licenses, however; you need to rent your memories and buy them back every single time you want to remember your trip to Disneyland, or that movie you liked the other week.

    Oh, and what was said about a license? Well, there are additional things. You can only remember the good parts, not the bad ones, and you can only remember it in one specific way. You can’t make any drawings of what you saw or whistle the tune you heard. You can’t tell others about this thing you experienced, except as allowed by the license guidelines. The memory says in your head, and can’t escape.

    Until we decide you can’t have it any more at all.

  • Jeremy Hankins

    This may not be strictly applicable, but I tend to think of this (your first question) in terms of the physical idea of a phase shift. You can slowly heat water and its properties will slowly change, up to about 212F, at which point its properties change dramatically. It expands, becomes very difficult to contain, and in short goes from being a beverage to weather.

  • http://www.hafod.com Sheila Perkins

    and then there’s the slight technical change called “money”, which destroyed trading and created Trade…

  • Ruven

    closer to the bone in that it deals with an irredeemable transgression that can be analogized to a technology which cannot be put back into the box (hello, Pandora), Shakespeare, from Macbeth:

    Will all great Neptune’s ocean wash this blood
    Clean from my hand? No: this my hand will rather
    The multitudinous seas incarnadine,
    Making the green one red.

  • Alexey Merz

    How about a second Bono challenge, with a different (better!?) test case? This time: A *scientist* (me, for example) who ceded copyright to his work to a privately held scientific publisher (as we nearly always must to get it published – there are no one-time rights in scientific publishing!) – and has now LOST his expectation that his work will in time pass into the public domain, preferably in his own lifetime.

    There is CLEAR harm to here to specific individuals, to science generally, and to the public who funded the work through NIH grants. Not to mention CLEAR violation of the copyright clause’s specification that copyright be for the promotion of science and the useful arts….

  • http://www.jzip.org/ adamsj

    My first thought was already posted–It’s A Wonderful Life. It’s great because everyone knows it. But what hasn’t been added is that it’s perfect because everyone knows it because of its long period of availability while its copyright was lapsed!

  • Solaria

    Does the example have to be related to technology? Could it be something like the “chaos” example where a butterfly fluttering it’s wings causes a tornado or hurricane half the world away? A small action having a large consequence.

    I’m not sure the butterfly example is relevant to the “ephemeral copying” that you are talking about, if I’m correctly understanding this “every action on the network is a copy”. I’ve never done any lawyering, but could the actions of the copyright holder, in making the information available via the web, be taken as permission for this “ephemeral copying” to take place?

    If everyone who browses the web is breaking the law…what happens?

    I wonder…if existing copyright laws had been enacted in 1800, 1900, or 1950? What would we not have now? Who would be in jail?


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