An mindset entirely unfriendly to artists and creators has emerged in recent years that contains an argument and a conclusion: (1) Copyright doesn’t work in the digital age. (2) Thus, as much as we might pretend to disapprove, infringement is a reality and the resulting forfeiture of rights by artists and creators should be accepted. A well-known law professor and author, Lawrence Lessig, gave the movement a name — “Free Culture” — and has provided a lot of rationalizations for infringement.

These rationalizations tend to be based on fallacies upon close examination, as I pointed out when I was invited to debate Professor Lessig in an issue of U.S. News and World Report. Now a movement has begun that completely rebuts a central thesis of Professor Lessig’s book Free Culture, which really kick-started this whole “free” meme.

In Chapter One of Free Culture, Professor Lessig attempts a challenging contortion; that taking someone’s creative work and tweaking it to produce a new work without the creator’s permission or compensation somehow benefits all of culture and by extension the original creator. He cites the manga comic market in Japan, where “copycat comics” featuring full replications of both illustrations and characters circulate.

Lessig admits this in his book: “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.” Yet he points out that manga publishers have not pursued infringement cases as aggressively as some U.S. copyright owners, and leaps to the conclusion that Japanese copyright owners must somehow feel this violation of their rights is okay.

Those authors and publishers, it turns out, do not feel it is okay. A Japanese comic association with thirty-six different members has joined with other Asian and American publishers to thwart what they call the “rampant and growing problem” of copycat comics that violate the authors’ and publishers’ rights. Publishers Weekly reports that the problem has grown from a small movement of fans circulating among friends to “heavily trafficked, for-profit Web sites that host thousands of pirated manga editions and offer them for free to readers.”

Again, the issue with digital infringement is scale. I don’t believe you’ll find a case where a record label sued someone for making a mix cassette tape for a friend, but we have seen copyright owners across numerous industries pursue infringement cases when someone “shares” a copyrighted work with potentially millions of strangers. The economic harm is particularly high when for-profit web operators engage in infringement, as the Congressional International Anti-Piracy Caucus recently noted in vowing to pursue actions to shut down such operations.

People a lot smarter than me have pointed out how Professor Lessig operates more like a rhetorical sophist than a traditional academic, for example Suffolk University Law Professor Mark Fischer. As I noted in my 2006 paper “Artists and Culture: Empowering the Former to Foster the Latter,” U. of Illinois Law Professor Lawrence B. Solum had this to say of Professor Lessig’s book Free Culture:

There is a distinction between effective rhetoric and responsible rhetoric. One can persuade with good arguments and with bad arguments. Does Free Culture achieve its rhetorical effects using stories and arguments that illuminate the future of copyright? Or did Lessig go over the top and take the cheap shots? As much as I admire Lessig and his book, the answer to these questions must be, ‘A little bit of both.’ Free Culture tells stories that are deeply lluminating, but it also avails itself of stories that seem calculated to drive home ad hominem attacks. The struggle over the future of copyright can be painted as the good guys versus the bad guys, but that way of framing the issues does little to enlighten and much to obscure the real and very tough questions that need to be answered.”

Professor Lessig’s passage on manga comics came in a section where he ridicules the Disney Corporation for defending their rights under copyright law. He faults that rightsholder for defending its rights, then points to a group of rightsholders abroad that is not pursuing their rights enforcement as aggressively, and argues the relatively lower level of effort in rights enforcement must then mean the rightsholders do not value those rights, and thus those rights must not only be worthless, but the rightsholders must agree with Professor Lessig that culture is enriched when rightsholders do not enforce their rights.

That was an exhausting sentence to write. There are so many questionable “if, then” twists of illogic in it, I fear it’s made me a bit lightheaded.

An economist might note that at the time Professor Lessig published Free Culture in 2004, the infringement being engaged in by comic copycats in Japan might have been judged by the rightsholders to be harmful, but that the high financial cost of aggressive enforcement might exceed the harm being caused. With the Internet and digital technology allowing the copycats to be distributed far more extensively by organizations seeking to profit from the infringement, it is now in the rightsholders’ economic interest to aggressively enforce those rights.

I would not expect Professor Lessig to acknowledge that the foundational premise of the opening chapter of his most cited work has now been completely undermined. But I wouldn’t be surprised if we don’t hear the manga anecdote cited with much frequency in his future writings and speeches. That is one small victory at least.

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This entry was posted on Thursday, June 10th, 2010 at 11:19 am by Patrick Ross and is filed under copyright law, copyright opponents, culture, international, piracy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.