Today, I released the first in a series of papers that will focus on the so-called “Free Culture Movement,” which, as today’s paper explains, could be just as fairly called the “Costly, State-Controlled Culture Movement” because the meaning of these two phrases became synonymous in the works of Professor Lawrence Lessig, author of the book Free Culture.

Essentially, the paper tries to survey Lessig’s writings to try to understand how even the demagoguery-prone author of Free Culture could have ended up arguing that we should replace copyrights—exclusive rights granted to the authors of expressive works—with tax-funded art and pervasive federal surveillance of what law-abiding citizens do, read, hear, and watch in their own homes, cars and offices.

I don’t usually try to anticipate responses, but two seem sufficiently predictable to be worth noting in advance, in hopes of better focusing debate.

First, some may argue that if Free Culture promotes an “Orwellian” future for copyright, then the use of so-called filtering technologies at the ISP or application level is equally Orwellian.

No, it isn’t. As I use the term here, filtering technologies work like this: They automatically use an algorithm to analyze given files and generate a unique digital identifier that is then automatically checked against a reference database that contains the fingerprints of files not authorized for uploading/transmission. If there is a match, the upload or transmission is blocked, if not, it completes, and the algorithm moves on to the next file. Nothing in this process requires the system retain any information, or communicate it to any rightsholder, or service-provider/ISP.

No one who presently uses a file-sharing program can credibly claim to find this process objectionable. File-sharing programs like LimeWire already generate similar digital file identifiers for each shared file and then store databases of them on multiple, potentially insecure computers scattered across the Internet. Moreover, (see here at p. 59, n.93), most such programs will, by default, create such databases (and fileservers) on computers owned by program users’ ISPs. For users of such programs, any alleged concerns about filtering look much like thinly veiled excuses for piracy.

For others, it is important to note what such filtering technologies do not do: They do not identify the content of any file that does not match one in their reference database. In other words, the filtering system does not “know” anything about the activities of noninfringing users.

The scheme advocated by Lessig is frighteningly different: It involves the government collecting, retaining, and analyzing surveillance data recording events in your home, car and office. That data must be sufficiently detailed to yeild detailed information about what you read, watch, and hear. And thus, what you do.

Second, some will argue that Lessig and his ilk cannot be said to despise or reject property rights in general or copyrights in particular because they support Creative Commons and open-source licensing schemes that are predicated upon copyrights in particular.

This a non sequitur—it’s like saying someone must respect free speech because he supports the speech of those who agree with him. In the case of both property and speech rights, the key question is whether you support the right of others to exercise their right in ways that you disagree with.

The exclusive rights that we grant to property owners and the free-speech rights that we grant in the First Amendment both tend to be very broad. As a result, holders of such rights can exercise them in many ways—including ways that most of us would think unwise. A farmer growing apples could choose to let them rot on her trees. A law professor could chose to play a video that gratuitously mocks other people’s religion.

But in neither case do we grant such broad rights because we want to encourage inefficient or rude behavior. To the contrary: We grant very broad freedom to act because we doubt that we can divine, in advance, through some collective mechanism, what the optimal outcome would be as to every situation that might implicate those rights. We thus conclude that over the long run, we will be more likely to discover truth or efficiency through an ex post process of competition between people who can make different—even clashing—decisions about how to exercise their rights.

This freedom to act also ensures that—at any one moment—some people are exercising their rights inefficiently, in part, because people disagree about what the true or efficient solution is. From a static perspective, these are inefficiencies caused by freedom (as we in the West like to imagine it). From a dynamic perspective, these disagreements are the truth-seeking mechanism that gives systems of speech rights and property rights superior dynamic efficiency. Schumpeter makes this point: “A system—any system, economic or other—that at every given point in time fully utilizes its possibilities to the best advantage may yet in the long run be inferior to a system that does so at no given point in time, because the latter’s failure to do so may be a condition for the level or speed of long-run performance.”

So if the question is whether someone who creates works or writes code should be permitted to administer their works according to a Creative Commons or open-source license, the opinions of others about their wisdom of doing so should be irrelevant: By granting broad exclusive rights that can be waived in whole or in part, we seek to give creators of socially valuable resources broad freedom to disagree about how best to administer them. In other words, if you do think that open source is a superior development method, then the real question is whether you respect the rights of other software developers to disagree and use closed-source development methods.

Indeed, if the test for being “pro-property” is merely whether there are some implementations of property rights that you would support, then even Karl Marx passes. Notwithstanding the call in the Manifesto of the Communist Party for abolishing all property rights, Marx makes clear that the problem is not all property rights, but property rights being administered in a bourgeois manner; the Communists, Marx says, really “intended abolition of bourgeois property.”

posted by Thomas Sydnor @ 12:13 PM |

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