Digital Properties

This April, I saw a wonderful new Star Wars film. It wasn’t made by George Lucas. I watched it for free, having downloaded a digital file, and I broke no copyright laws.

Star Wars: Revelations is a work of delirious fandom: a 40-minute homage by amateur filmmakers that imagines the interval between Star Wars Episode III: Revenge of the Sith and the original Star Wars (now Episode IV: A New Hope).

Revelations is a “remix.” It has all a Star Wars movie should: packs of Imperial fighters, light-saber duels, a sobbing orchestral score. It exists only because George Lucas waived many of the traditional privileges of the copyright owner. So long as the filmmakers did not sell the movie, they were allowed to freely reuse most of the elements of the Star Wars universe.

Lawrence Lessig, a professor of law at Stanford University and a famous proponent of more-relaxed copyright regulations, praises this kind of free cultural reuse in an essay in this month’s package on intellectual property (see “The People Own Ideas!”): “Many more people (indeed, millions more) could make good films. New digital technologies could enable an explosion of creative work.”

Lessig goes further: he argues that remixing is “how culture gets made.” He writes, “It is almost impossible to imagine a culture thriving if its people are not free to engage in this kind of practice.” But he also worries that new digital rights management (DRM) technologies will make remixes like Revelations dependent on the permission of enlightened copyright owners like Lucas – and, therefore, vanishingly rare.

Lessig’s point is subtle. To see its force, one must understand how far copyright regulation has expanded its scope. Additionally, one must grasp a peculiar property of digital technologies.

U.S. copyright law has its origins in the technology of the industrial era: it was originally designed to govern the operations of printing presses. At first, few cultural artifacts were regulated: only books, maps, and charts. But copyright has grown to regulate more media, and after the Copyright Act of 1976, all tangible creative work was automatically protected by copyright.

Still, before the digital era, copyright law did not affect the ordinary uses of cultural artifacts. Reading or sharing a book was not regulated, because no copy was made. But it is a property of digital technologies that every use of a creative work produces a copy – one that can be shared with millions of other people.

DRM technologies would, of course, ensure that copyright owners are paid after years of near universal piracy. But they would do more: allow the enforcement of the hitherto notional 1976 Copyright Act. In Lessig’s elegant formulation, “When the Internet gives copyright owners perfect control of their content, then, since it’s all automatically copyrighted, every use of it will presumptively require permission.”

Lessig is so appalled by this prospect that he advocates a “free-culture movement” based on the free-software movement that spawned Linux (see “How Linux Could Overthrow Microsoft”). Lessig salutes the Brazilian government’s recent support of free culture in its policies and procurements.

Richard Epstein, professor of law at the University of Chicago and a noted champion of the power of markets, has serious objections to this line of reasoning. In a rejoinder to Lessig, “The Creators Own Ideas”, he rejects the “wholly illiberal” idea that the government, whose proper role is to be a neutral arbiter, should favor one mode of business over another. He also contends that rather than thwarting creativity, proprietary systems encourage it by providing financial incentives.

Who is right? Surely, there is truth on both sides. Indeed, both Lessig and Epstein acknowledge that there have always been private and commonly owned ideas; both tacitly accept that this is unlikely to change in the digital era. Both wish to see a society that preserves reasonable and limited copyrights, while simultaneously abjuring extreme limits on individuals’ ability to “remix” culture. They want a copyright system appropriate for the digital era.

But Lessig is too alarmist about DRM technologies: they will not make remixing “impossible.” More importantly, they would allow what economists call “price discrimination,” the ability of sellers to price their products according to their use. This is a useful innovation for digital economies: someone who wanted to keep an e-book, for example, could be charged more than someone who only wanted to read it once.

A strong argument against Lessig is that Revelations was remixed from cultural material held under one of the most profitable traditional copyrights of all time. Proprietary systems don’t necessarily discourage innovation. Perhaps, rather, the reverse. Am I wrong? Write to [email protected].