December 2004, Volume 90, Issue 8|
Lawrence Lessig's Dystopian Vision
90 Va. L. Rev. 2305 (2004)
In Free Culture, Stanford Law School Professor Lawrence Lessig has ratcheted up his already heated rhetoric to produce a book that warns that the health of the "ecosystem of creativity" is in "grave peril" due to the efforts of "big cultural monopolists" to reduce the size of the public domain while using new technologies "to control what we can and can't do with the culture all around us." Failure to reverse the degradation of this ecosystem, we are assured, could lead to the loss of "freedom to create, freedom to build" and even "freedom to imagine."
But the curious thing about Free Culture is that, stripped of its impassioned tone, the book portrays not a world of suffocated creativity and cultural impoverishment, but rather one where an unprecedented number of individuals are engaged in creative projects, free to make use of and draw inspiration from a rich trove of cultural resources. To be sure, the picture that emerges is far from a Panglossian "best of all possible worlds." Real problems exist, and Lessig provides a valuable public service in pointing them out. Absent from Lessig's analysis, though, is a full acknowledgement that the problems he details are of a piece with ones that Anglo-American law has confronted many times. In particular, the concern that special interests will pressure legislatures to change the contours of property rights so as to restrict competition was well understood by the nation's founders, and the drawbacks of granting property rights to individuals and institutions who place little or no value on such rights (as may have occurred with the abolition of formal registration requirements to obtain copyrights) have been extensively discussed in the contexts of adverse possession and future interests.
Lessig's stubborn insistence that the dangers that loom are of unprecedented magnitude leads him to suggest that sweeping overhauls of legal rules and institutions as well as of societal norms are warranted. But a careful reading of Lessig's own litany points to a different, more complicated conclusion: existing regimes are for the most part healthy, albeit in need of continual monitoring and adjustment.
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