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I have tons of things to say about this, but first, I am going to start with the biggest one. I have read the first review and the responses to it on Lessig's blog. While many of them are great responses, the real problem was not mentioned, although Lessig may have some idea of it since he mentioned that '[He] love[s] it when non-lawyers sing of the virtues of "fair use."'
The fact is, this is a miscommunication between two groups of people with two different sets of assumptions. The lawyers believe, in fact they know, legally speaking, that ideas are not property. The general public, however, has been educated (or indoctrinated; take your pick) to believe that ideas can be and are "owned".
In my opinion, this is Lessig's biggest error. Doc Searls seems to have stated it somewhere (no, I am not going to track it down), and Lessig
comments on it [lessig.org] in
his blog [lessig.org]. Lessig says:
Doc has a brilliant and absolutely correct diagnosis at the American Open Technology Consortium website about how we lost in Eldred. Copyright is understood to be a form of simple property. The battle in Eldred thus sounded like a battle for and against property. On such a simple scale, it was clear how the majority of the Court would vote. Not because they are conservative, but because they are Americans. We have a (generally sensible) pro-property bias in this culture that makes it extremely hard for people to think critically about the most complicated form of property out there â what most call âintellectual property.â To question property of any form makes you a communist. Yet this is precisely our problem: To make it clear that we are pro-copyright without being extremists either way.
[emphasis mine, obviously]
This is a political problem, not a legal one. The law cannot change public perception, and admitting that ideas are "property" -- in any sense of the word -- or even using the term "intellectual property" hands the jury its judgment.
He concedes copyright is a form of "property right" in
Free Culture [hejieshijie.net]
(in the section entitled "Property" [hejieshijie.net])
as well:
The copyright warriors are right: A copyright is a kind of property. It can be owned and sold, and the law protects against its theft.
[emphasis mine]
In this statement, Lessig means that the copyright is the property, not the information it relates to, but most people (including myself until just now) would interpret that as a claim that the information itself is the property. He does not realize by doing this, he has given the monopolists all the ammunition they need to demolish any arguments for freedom completely. If ideas are property, then they are something that the author can, and indeed deserves to, control. Even the government has no right to challenge the author in such a scenario.
This also makes copy"right" a natural right like rights to life and liberty, when in fact, it is a privilege extended temporarily by the government as an incentive to create.
The truth is, Lessig is trying too hard to be fair. The RIAA and the MPAA -- and now (suprise! suprise!) the publishing industry -- are not playing fair. They are playing to win. By playing in their ball court and using their (verbal) terms, Lessig is giving up all the advantages of being right. I understand that the side of good has to play fairer than the side of evil, but admitting that evil is correct is generally a bad idea.
"Anyone who doesn't quote me is paraphrasing."
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GrepLaw
