By Lawrence Lessig
September/October 2005
SourceWithin every culture, there is a public domain—a lawyer-free zone, unregulated by the rules of copyright. Throughout history, this part of culture has been vital to the spread and development of creative work. It is the part that gets cultivated without the permission of anyone else.
This public domain has always lived alongside a private domain—the part of culture that is owned and regulated, that part whose use requires the permission of someone else. Through the market incentives it creates, the private domain has also produced extraordinary cultural wealth throughout the world. It is essential to how cultures develop.
Traditionally, the law has kept these two domains in balance. The term of copyright was relatively short, and its reach was essentially commercial. But a fundamental change in the scope and nature of copyright law, inspired by a radical change in technology, now threatens this balance. Digital technologies have made it easy—indeed, too easy—for creative work in the private domain to spread without permission. Piracy is rampant on the highways of digital technology. In response, code writers (both legislators and technologists) have created an unprecedented array of weapons (both legal and technical) to wage war on the pirates and restore control to the owners of culture. Yet the control these weapons will produce is far greater than anything we have seen in our past.
So, for example, the United States has radically increased the reach of copyright regulation. And through the World Intellectual Property Organization, wealthy countries everywhere are pushing to impose even tighter restrictions on the rest of the world. These legal measures will soon be supplemented by extraordinary technologies that will secure to the owners of culture almost perfect control over how “their property” is used. Any balance between public and private will thus be lost. The private domain will swallow the public domain. And the cultivation of culture and creativity will then be dictated by those who claim to own it.
There is no doubt that piracy is an important problem—it’s just not the only problem. Our leaders have lost this sense of balance. They have been seduced by a vision of culture that measures beauty in ticket sales. They are apparently untroubled by a world where cultivating the past requires the permission of the past. They can’t imagine that freedom could produce anything worthwhile at all.
The danger remains invisible to most, hidden by the zeal of a war on piracy. And that is how the public domain may die a quiet death, extinguished by self-righteous extremism, long before many even recognize it is gone.
Lawrence Lessig is professor of law at Stanford University.