How Big Media Uses Technology and the Law
Lock Down Culture and Control Creativity
the inception of the law regulating creative property, there
has been a war against “piracy.” The precise contours of this
concept, “piracy,” are hard to sketch, but the animating injustice
is easy to capture. As Lord Mansfield wrote in a case that
extended the reach of English copyright law to include sheet
person may use the copy by playing it, but he has no right
to rob the author of the profit, by multiplying copies and
disposing of them for his own use.
we are in the middle of another “war” against “piracy.” The
Internet has provoked this war. The Internet makes possible
the efficient spread of content. Peer-to-peer (p2p) file sharing
is among the most efficient of the efficient technologies
the Internet enables. Using distributed intelligence, p2p
systems facilitate the easy spread of content in a way unimagined
a generation ago.
efficiency does not respect the traditional lines of copyright.
The network doesn't discriminate between the sharing of copyrighted
and uncopyrighted content. Thus has there been a vast amount
of sharing of copyrighted content. That sharing in turn has
excited the war, as copyright owners fear the sharing will
“rob the author of the profit.”
warriors have turned to the courts, to the legislatures, and
increasingly to technology to defend their “property” against
this “piracy.” A generation of Americans, the warriors warn,
is being raised to believe that “property” should be “free.”
Forget tattoos, never mind body piercing — our kids are becoming
no doubt that “piracy” is wrong, and that pirates should be
punished. But before we summon the executioners, we should
put this notion of “piracy” in some context. For as the concept
is increasingly used, at its core is an extraordinary idea
that is almost certainly wrong.
idea goes something like this:
work has value; whenever I use, or take, or build upon the
creative work of others, I am taking from them something of
value. Whenever I take something of value from someone else,
I should have their permission. The taking of something of
value from someone else without permission is wrong. It is
a form of piracy.
view runs deep within the current debates. It is what NYU
law professor Rochelle Dreyfuss criticizes as the “if value,
then right" theory of creative property — if there is
value, then someone must have a right to that value. It is
the perspective that led a composers' rights organization,
ASCAP, to sue the Girl Scouts for failing to pay for the songs
that girls sang around Girl Scout campfires. There was “value”
(the songs) so there must have been a “right” — even against
the Girl Scouts.
idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for
a system of law protecting creative property. But the “if
value, then right" theory of creative property has never
been America's theory of creative property. It has never taken
hold within our law.
in our tradition, intellectual property is an instrument.
It sets the groundwork for a richly creative society but remains
subservient to the value of creativity. The current debate
has this turned around. We have become so concerned with protecting
the instrument that we are losing sight of the value.
source of this confusion is a distinction that the law no
longer takes care to draw — the distinction between republishing
someone's work on the one hand and building upon or transforming
that work on the other. Copyright law at its birth had only
publishing as its concern; copyright law today regulates both.
the technologies of the Internet, this conflation didn't matter
all that much. The technologies of publishing were expensive;
that meant the vast majority of publishing was commercial.
Commercial entities could bear the burden of the law — even
the burden of the Byzantine complexity that copyright law
has become. It was just one more expense of doing business.
with the birth of the Internet, this natural limit to the
reach of the law has disappeared. The law controls not just
the creativity of commercial creators but effectively that
of anyone. Although that expansion would not matter much if
copyright law regulated only “copying,” when the law regulates
as broadly and obscurely as it does, the extension matters
a lot. The burden of this law now vastly outweighs any original
benefit — certainly as it affects noncommercial creativity,
and increasingly as it affects commercial creativity as well.
Thus, as we'll see more clearly in the chapters below, the
law's role is less and less to support creativity, and more
and more to protect certain industries against competition.
Just at the time digital technology could unleash an extraordinary
range of commercial and noncommercial creativity, the law
burdens this creativity with insanely complex and vague rules
and with the threat of obscenely severe penalties. We may
be seeing, as Richard Florida writes, the “Rise of the Creative
Class.” Unfortunately, we are also seeing an extraordinary
rise of regulation of this creative class.
burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in
their proper context the current battles about behavior labeled
1928, a cartoon character was born. An early Mickey
Mouse made his debut in May of that year, in a silent flop
called Plane Crazy. In November, in New York City's
Colony Theater, in the first widely distributed cartoon synchronized
with sound, Steamboat Willie brought to life the
character that would become Mickey Mouse.
sound had been introduced to film a year earlier in the movie
The Jazz Singer. That success led Walt Disney to
copy the technique and mix sound with cartoons. No one knew
whether it would work or, if it did work, whether it would
win an audience. But when Disney ran a test in the summer
of 1928, the results were unambiguous. As Disney describes
that first experiment:
couple of my boys could read music, and one of them could
play a mouth organ. We put them in a room where they could
not see the screen and arranged to pipe their sound into the
room where our wives and friends were going to see the picture.
boys worked from a music and sound-effects score. After several
false starts, sound and action got off with the gun. The mouth
organist played the tune, the rest of us in the sound department
bammed tin pans and blew slide whistles on the beat. The synchronization
was pretty close.
effect on our little audience was nothing less than electric.
They responded almost instinctively to this union of sound
and motion. I thought they were kidding me. So they put me
in the audience and ran the action again. It was terrible,
but it was wonderful! And it was something new!
then partner, and one of animation's most extraordinary talents,
Ub Iwerks, put it more strongly: “I have never been so thrilled
in my life. Nothing since has ever equaled it.”
had created something very new, based upon something relatively
new. Synchronized sound brought life to a form of creativity
that had rarely — except in Disney's hands — been anything
more than filler for other films. Throughout animation's early
history, it was Disney's invention that set the standard that
others struggled to match. And quite often, Disney's great
genius, his spark of creativity, was built upon the work of
much is familiar. What you might not know is that 1928 also
marks another important transition. In that year, a comic
(as opposed to cartoon) genius created his last independently
produced silent film. That genius was Buster Keaton. The film
was Steamboat Bill, Jr.
was born into a vaudeville family in 1895. In the era of silent
film, he had mastered using broad physical comedy as a way
to spark uncontrollable laughter from his audience. Steamboat
Bill, Jr. was a classic of this form, famous among film
buffs for its incredible stunts. The film was classic Keaton
— wildly popular and among the best of its genre.
Bill, Jr. appeared before Disney's cartoon Steamboat
Willie. The coincidence of titles is not coincidental.
Steamboat Willie is a direct cartoon parody of Steamboat Bill,
and both are built upon a common song as a source. It is not
just from the invention of synchronized sound in The Jazz
Singer that we get Steamboat Willie. It is also
from Buster Keaton's invention of Steamboat Bill, Jr., itself
inspired by the song “Steamboat Bill,” that we get Steamboat
Willie, and then from Steamboat Willie, Mickey Mouse.
“borrowing” was nothing unique, either for Disney or for the
industry. Disney was always parroting the feature-length mainstream
films of his day. So did many others. Early cartoons are filled
with knockoffs — slight variations on winning themes; retellings
of ancient stories. The key to success was the brilliance
of the differences. With Disney, it was sound that gave his
animation its spark. Later, it was the quality of his work
relative to the production-line cartoons with which he competed.
Yet these additions were built upon a base that was borrowed.
Disney added to the work of others before him, creating something
new out of something just barely old.
this borrowing was slight. Sometimes it was significant. Think
about the fairy tales of the Brothers Grimm. If you're as
oblivious as I was, you're likely to think that these tales
are happy, sweet stories, appropriate for any child at bedtime.
In fact, the Grimm fairy tales are, well, for us, grim. It
is a rare and perhaps overly ambitious parent who would dare
to read these bloody, moralistic stories to his or her child,
at bedtime or anytime.
took these stories and retold them in a way that carried them
into a new age. He animated the stories, with both characters
and light. Without removing the elements of fear and danger
altogether, he made funny what was dark and injected a genuine
emotion of compassion where before there was fear. And not
just with the work of the Brothers Grimm. Indeed, the catalog
of Disney work drawing upon the work of others is astonishing
when set together: Snow White (1937), Fantasia
(1940), Pinocchio (1940), Dumbo (1941),
Bambi (1942), Song of the South (1946),
Cinderella (1950), Alice in Wonderland (1951),
Robin Hood (1952), Peter Pan (1953), Lady
and the Tramp (1955), Mulan (1998), Sleeping
Beauty (1959), 101 Dalmatians (1961), The
Sword in the Stone (1963), and The Jungle Book (1967)
— not to mention a recent example that we should perhaps quickly
forget, Treasure Planet (2003). In all of these cases,
Disney (or Disney, Inc.) ripped creativity from the culture
around him, mixed that creativity with his own extraordinary
talent, and then burned that mix into the soul of his culture.
Rip, mix, and burn.
is a kind of creativity. It is a creativity that we should
remember and celebrate. There are some who would say that
there is no creativity except this kind. We don't need to
go that far to recognize its importance. We could call this
“Disney creativity,” though that would be a bit misleading.
It is, more precisely, “Walt Disney creativity” — a form of
expression and genius that builds upon the culture around
us and makes it something different.
1928, the culture that Disney was free to draw upon was relatively
fresh. The public domain in 1928 was not very old and was
therefore quite vibrant. The average term of copyright was
just around thirty years — for that minority of creative work
that was in fact copyrighted. That means that for thirty years,
on average, the authors or copyright holders of a creative
work had an “exclusive right” to control certain uses of the
work. To use this copyrighted work in limited ways required
the permission of the copyright owner.
the end of a copyright term, a work passes into the public
domain. No permission is then needed to draw upon or use that
work. No permission and, hence, no lawyers. The public domain
is a “lawyer-free zone.” Thus, most of the content from the
nineteenth century was free for Disney to use and build upon
in 1928. It was free for anyone— whether connected or not,
whether rich or not, whether approved or not—to use and build
is the ways things always were — until quite recently. For
most of our history, the public domain was just over the horizon.
From 1790 until 1978, the average copyright term was never
more than thirty-two years, meaning that most culture just
a generation and a half old was free for anyone to build upon
without the permission of anyone else. Today's equivalent
would be for creative work from the 1960s and 1970s to now
be free for the next Walt Disney to build upon without permission.
Yet today, the public domain is presumptive only for content
from before the Great Depression.
course, Walt Disney had no monopoly on “Walt Disney
creativity.” Nor does America. The norm of free culture has,
until recently, and except within totalitarian nations, been
broadly exploited and quite universal.
for example, a form of creativity that seems strange to many
Americans but that is inescapable within Japanese culture:
manga, or comics. The Japanese are fanatics about
comics. Some 40 percent of publications are comics, and 30
percent of publication revenue derives from comics. They are
everywhere in Japanese society, at every magazine stand, carried
by a large proportion of commuters on Japan's extraordinary
system of public transportation.
tend to look down upon this form of culture. That's an unattractive
characteristic of ours. We're likely to misunderstand much
about manga, because few of us have ever read anything close
to the stories that these “graphic novels” tell. For the Japanese,
manga cover every aspect of social life. For us, comics are
“men in tights.” And anyway, it's not as if the New York subways
are filled with readers of Joyce or even Hemingway. People
of different cultures distract themselves in different ways,
the Japanese in this interestingly different way.
my purpose here is not to understand manga. It is to describe
a variant on manga that from a lawyer's perspective is quite
odd, but from a Disney perspective is quite familiar.
is the phenomenon of doujinshi. Doujinshi are also
comics, but they are a kind of copycat comic. A rich ethic
governs the creation of doujinshi. It is not doujinshi if
it is just a copy; the artist must make a contribution to
the art he copies, by transforming it either subtly or significantly.
A doujinshi comic can thus take a mainstream comic and develop
it differently — with a different story line. Or the comic
can keep the character in character but change its look slightly.
There is no formula for what makes the doujinshi sufficiently
“different.” But they must be different if they are to be
considered true doujinshi. Indeed, there are committees that
review doujinshi for inclusion within shows and reject any
copycat comic that is merely a copy.
copycat comics are not a tiny part of the manga market. They
are huge. More than 33,000 “circles” of creators from across
Japan produce these bits of Walt Disney creativity. More than
450,000 Japanese come together twice a year, in the largest
public gathering in the country, to exchange and sell them.
This market exists in parallel to the mainstream commercial
manga market. In some ways, it obviously competes with that
market, but there is no sustained effort by those who control
the commercial manga market to shut the doujinshi market down.
It flourishes, despite the competition and despite the law.
most puzzling feature of the doujinshi market, for those trained
in the law, at least, is that it is allowed to exist at all.
Under Japanese copyright law, which in this respect (on paper)
mirrors American copyright law, the doujinshi market is an
illegal one. Doujinshi are plainly “derivative works.” There
is no general practice by doujinshi artists of securing the
permission of the manga creators. Instead, the practice is
simply to take and modify the creations of others, as Walt
Disney did with Steamboat Bill, Jr. Under both Japanese
and American law, that “taking” without the permission of
the original copyright owner is illegal. It is an infringement
of the original copyright to make a copy or a derivative work
without the original copyright owner's permission.
this illegal market exists and indeed flourishes in Japan,
and in the view of many, it is precisely because it exists
that Japanese manga flourish. As American graphic novelist
Judd Winick said to me, “The early days of comics in America
are very much like what's going on in Japan now. . . . American
comics were born out of copying each other. . . . That's how
[the artists] learn to draw — by going into comic books and
not tracing them, but looking at them and copying them” and
building from them.
comics now are quite different, Winick explains, in part because
of the legal difficulty of adapting comics the way doujinshi
are allowed. Speaking of Superman, Winick told me, “there
are these rules and you have to stick to them.” There are
things Superman “cannot” do. “As a creator, it's frustrating
having to stick to some parameters which are fifty years old.”
norm in Japan mitigates this legal difficulty. Some say it
is precisely the benefit accruing to the Japanese manga market
that explains the mitigation. Temple University law professor
Salil Mehra, for example, hypothesizes that the manga market
accepts these technical violations because they spur the manga
market to be more wealthy and productive. Everyone would be
worse off if doujinshi were banned, so the law does not ban
problem with this story, however, as Mehra plainly acknowledges,
is that the mechanism producing this laissez faire response
is not clear. It may well be that the market as a whole is
better off if doujinshi are permitted rather than banned,
but that doesn't explain why individual copyright owners don't
sue nonetheless. If the law has no general exception for doujinshi,
and indeed in some cases individual manga artists have sued
doujinshi artists, why is there not a more general pattern
of blocking this “free taking” by the doujinshi culture?
spent four wonderful months in Japan, and I asked this question
as often as I could. Perhaps the best account in the end was
offered by a friend from a major Japanese law firm. “We don't
have enough lawyers,” he told me one afternoon. There “just
aren't enough resources to prosecute cases like this.”
is a theme to which we will return: that regulation by law
is a function of both the words on the books and the costs
of making those words have effect. For now, focus on the obvious
question that is begged: Would Japan be better off with more
lawyers? Would manga be richer if doujinshi artists were regularly
prosecuted? Would the Japanese gain something important if
they could end this practice of uncompensated sharing? Does
piracy here hurt the victims of the piracy, or does it help
them? Would lawyers fighting this piracy help their clients
or hurt them?
pause for a moment.
you're like I was a decade ago, or like most people are when
they first start thinking about these issues, then just about
now you should be puzzled about something you hadn't thought
live in a world that celebrates “property.” I am one of those
celebrants. I believe in the value of property in general,
and I also believe in the value of that weird form of property
that lawyers call “intellectual property.” A large, diverse
society cannot survive without property; a large, diverse,
and modern society cannot flourish without intellectual property.
it takes just a second's reflection to realize that there
is plenty of value out there that “property” doesn't capture.
I don't mean “money can't buy you love,” but rather, value
that is plainly part of a process of production, including
commercial as well as noncommercial production. If Disney
animators had stolen a set of pencils to draw Steamboat Willie,
we'd have no hesitation in condemning that taking as wrong
— even though trivial, even if unnoticed. Yet there was nothing
wrong, at least under the law of the day, with Disney's taking
from Buster Keaton or from the Brothers Grimm. There was nothing
wrong with the taking from Keaton because Disney's use would
have been considered “fair.” There was nothing wrong with
the taking from the Grimms because the Grimms' work was in
the public domain.
even though the things that Disney took — or more generally,
the things taken by anyone exercising Walt Disney creativity
— are valuable, our tradition does not treat those takings
as wrong. Some things remain free for the taking within a
free culture, and that freedom is good.
same with the doujinshi culture. If a doujinshi artist broke
into a publisher's office and ran off with a thousand copies
of his latest work — or even one copy — without paying, we'd
have no hesitation in saying the artist was wrong. In addition
to having trespassed, he would have stolen something of value.
The law bans that stealing in whatever form, whether large
there is an obvious reluctance, even among Japanese lawyers,
to say that the copycat comic artists are “stealing.” This
form of Walt Disney creativity is seen as fair and right,
even if lawyers in particular find it hard to say why.
the same with a thousand examples that appear everywhere once
you begin to look. Scientists build upon the work of other
scientists without asking or paying for the privilege. (“Excuse
me, Professor Einstein, but may I have permission to use your
theory of relativity to show that you were wrong about quantum
physics?”) Acting companies perform adaptations of the works
of Shakespeare without securing permission from anyone. (Does
anyone believe Shakespeare would be better spread
within our culture if there were a central Shakespeare rights
clearinghouse that all productions of Shakespeare must appeal
to first?) And Hollywood goes through cycles with a certain
kind of movie: five asteroid films in the late 1990s; two
volcano disaster films in 1997.
here and everywhere are always and at all times building upon
the creativity that went before and that surrounds them now.
That building is always and everywhere at least partially
done without permission and without compensating the original
creator. No society, free or controlled, has ever demanded
that every use be paid for or that permission for Walt Disney
creativity must always be sought. Instead, every society has
left a certain bit of its culture free for the taking—free
societies more fully than unfree, perhaps, but all societies
to some degree.
hard question is therefore not whether a culture
is free. All cultures are free to some degree. The hard question
instead is “ How free is this culture?” How much,
and how broadly, is the culture free for others to take and
build upon? Is that freedom limited to party members? To members
of the royal family? To the top ten corporations on the New
York Stock Exchange? Or is that freedom spread broadly? To
artists generally, whether affiliated with the Met or not?
To musicians generally, whether white or not? To filmmakers
generally, whether affiliated with a studio or not?
cultures are cultures that leave a great deal open for others
to build upon; unfree, or permission, cultures leave much
less. Ours was a free culture. It is becoming much less so.
is a Professor of Law at Stanford Law School and founder
of the school's Center for Internet and Society. Prior to
joining the Stanford faculty, he was the Berkman Professor
of Law at Harvard Law School. Lessig was also a fellow at
the Wissenschaftskolleg zu Berlin, and a Professor at the
University of Chicago Law School.
He is the author of The Future of Ideas and Code
and Other Laws of Cyberspace. He also chairs the Creative
Commons project. Professor Lessig is a boardmember of the
Electronic Frontier Foundation, a Board Member of the Center
for the Public Domain, and a Commission Member of the Penn
National Commission on Society, Culture and Community at
the University of Pennsylvania.