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Free Culture
Lawrence Lessig Keynote from OSCON 2002

by Lawrence Lessig
08/15/2002

Editor's Note: In his address before a packed house at the Open Source Convention, Lawrence Lessig challenges the audience to get more involved in the political process. Lawrence, a tireless advocate for open source, is a professor of law at Stanford Law School and the founder of the school's Center for Internet and Society. He is also the author of the best-selling book Code, and Other Laws of Cyberspace. Here is the complete transcript of Lawrence's keynote presentation made on July 24, 2002.

Lawrence Lessig: I have been doing this for about two years--more than 100 of these gigs. This is about the last one. One more and it's over for me. So I figured I wanted to write a song to end it. But then I realized I don't sing and I can't write music. But I came up with the refrain, at least, right? This captures the point. If you understand this refrain, you're gonna' understand everything I want to say to you today. It has four parts:

  • Creativity and innovation always builds on the past.

  • The past always tries to control the creativity that builds upon it.

  • Free societies enable the future by limiting this power of the past.

  • Ours is less and less a free society.

In 1774, free culture was born. In a case called Donaldson v. Beckett in the House of Lords in England, free culture was made because copyright was stopped. In 1710, the statute had said that copyright should be for a limited term of just 14 years. But in the 1740s, when Scottish publishers started reprinting classics (you gotta' love the Scots), the London publishers said "Stop!" They said, "Copyright is forever!" Sonny Bono said "Copyright should be forever minus a day," but the London publishers said "Copyright is forever."

These publishers, people whom Milton referred to as old patentees and monopolizers in the trade of book selling, men who do not labor in an honest profession (except Tim here), to [them] learning is indebted. These publishers demanded a common-law copyright that would be forever. In 1769, in a case called Miller v. Taylor, they won their claim, but just five years later, in Donaldson, Miller was reversed, and for the first time in history, the works of Shakespeare were freed, freed from the control of a monopoly of publishers. Freed culture was the result of that case.

Remember the refrain. I would sing it, but you wouldn't want me to. OK. Well, by the end we'll see.


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That free culture was carried to America; that was our birth--1790. We established a regime that left creativity unregulated. Now it was unregulated because copyright law only covered "printing." Copyright law did not control derivative work. And copyright law granted this protection for the limited time of 14 years.

That was our birth, and more fundamentally, in 1790, because of the technology of the time, all things protected were free code. You could take the works of Shakespeare and read the source--the source was the book. You could take the work of any creativity protected by the law and understand what made it tick [by] studying it. This was the design and the regime, and even in the context of patents, there were transparent technologies. You didn't take, you didn't need to take the cotton gin [for example] and read the patent to understand how it worked, right? You could just take it apart.

These were legal protections in a context where understanding and learning were still free. Control in this culture was tiny. That was cute, right? Control, tiny . . . OK. And not just then, right? Forget the 18th century, the 19th century, even at the birth of the 20th century. Here's my favorite example, here: 1928, my hero, Walt Disney, created this extraordinary work, the birth of Mickey Mouse in the form of Steamboat Willie. But what you probably don't recognize about Steamboat Willie and his emergence into Mickey Mouse is that in 1928, Walt Disney, to use the language of the Disney Corporation today, "stole" Willie from Buster Keaton's "Steamboat Bill."

It was a parody, a take-off; it was built upon Steamboat Bill. Steamboat Bill was produced in 1928, no [waiting] 14 years--just take it, rip, mix, and burn, as he did [laughter] to produce the Disney empire. This was his character. Walt always parroted feature-length mainstream films to produce the Disney empire, and we see the product of this. This is the Disney Corporation: taking works in the public domain, and not even in the public domain, and turning them into vastly greater, new creativity. They took the works of this guy, these guys, the Brothers Grimm, who you think are probably great authors on their own. They produce these horrible stories, these fairy tales, which anybody should keep their children far from because they're utterly bloody and moralistic stories, and are not the sort of thing that children should see, but they were retold for us by the Disney Corporation. Now the Disney Corporation could do this because that culture lived in a commons, an intellectual commons, a cultural commons, where people could freely take and build. It was a lawyer-free zone.

(Audience Applauds.)

Related Resources:

Lawrence Lessig Home Page--Includes links to books (The Future of Ideas and Code and Other Laws of Cyberspace), articles, projects, and news.

A flash version of Lessig's presentation, including audio and other source files.

Creative Commons--A nonprofit organization founded on the notion that some people would prefer to share their creative works (and the power to copy, modify, and distribute their works) instead of exercising all of the restrictions of copyright law.

The Electronic Frontier Foundation (EFF)

O'Reilly Network Policy DevCenter

O'Reilly Open Source Convention Coverage

It was culture, which you didn't need the permission of someone else to take and build upon. That was the character of creativity at the birth of the last century. It was built upon a constitutional requirement that protection be for limited times, and it was originally limited. Fourteen years, if the author lived, then 28, then in 1831 it went to 42, then in 1909 it went to 56, and then magically, starting in 1962, look--no hands, the term expands.

Eleven times in the last 40 years it has been extended for existing works--not just for new works that are going to be created, but existing works. The most recent is the Sonny Bono copyright term extension act. Those of us who love it know it as the Mickey Mouse protection act, which of course [means] every time Mickey is about to pass through the public domain, copyright terms are extended. The meaning of this pattern is absolutely clear to those who pay to produce it. The meaning is: No one can do to the Disney Corporation what Walt Disney did to the Brothers Grimm. That though we had a culture where people could take and build upon what went before, that's over. There is no such thing as the public domain in the minds of those who have produced these 11 extensions these last 40 years because now culture is owned.

Remember the refrain: We always build on the past; the past always tries to stop us. Freedom is about stopping the past, but we have lost that ideal.

Things are different now, [different] from even when Walt produced the Walt Disney Corporation. In this year now, we have a massive system to regulate creativity. A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying. You know the things that computers do when you boot them up? Going from copies to, not just copies of the original work, but even derivative works on top of it. Going from 14 years for new works produced by a real author--there are fewer and fewer of those people out there--to life plus 70 years. That's the expansion of law, but also there's been an expansion of control through technology.

OK, so first of all, this reality of opaque creativity, you know that as proprietary code. Creativity where you don't get to see how the thing works, and the law protects the thing you can't see. It's not Shakespeare that you can study and understand because the code is, by nature, open. Nature has been reformed in our modern, technological era, so nature can be hidden and the law still protects it--and not just through the protection, but through increasing control of uses of creative work.

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