The Free Culture debate

James DeLong responds to
my post about the Free Culture Movement (FCM) and property
rights.  He steps back from his earlier statements and
acknowledges that, yes, there are elements of the movement, such as
Creative Commons, that work within the property rights system. 
For that I give him credit. 

I don’t agree with his stark division of the FCM into “BSD Licence”
activities that respect property rights and “GPL” activities that seek
to overthrow them, but I won’t be ungrateful.  It’s a much more
nuanced and accurate view that what he started with.  If we can
spend our energy debating the substance of the issues — which sets of
rules better promote economic efficiency, freedom, and innovation — we
may make some progress.

To my mind, the genius of people like Larry Lessig and Yochai Benkler
is that, unlike the prior “copyleft” generation represented by GPL
creator Richard Stallman, they are able to engage on their opponents’
own turf as well as from the outside.  What set me off about
DeLong’s original post was the unwillingness to accept that fact, by
labeling the whole movement as opposed to property rights.

DeLong takes umbrage at my use of the term “copyright
maximalists.”  First of all, I didn’t apply that label to him — I
was thinking more of Jack Valenti. As DeLong makes clear in his
followup post, he appreciates that property rights have limits:

It is clear as a matter of historical experience
and common sense that property rights get cut and trimmed to fit the
technological and transaction-cost realities of the age.”


Unfortunately, many of the business and political interests in the
digital content debates fail to acknowledge this point.  The movie
industry, for example, has voiciferously promoted its conception of its
intellectual property rights as morally sacrosanct, now and
forever.  One key rhetorical move they make in doing so is to
label anyone who questions their viewpoint as a communist and/or a
pirate.  (I’m not sure which is the greater insult.)  You
either support the Sonny Bono Copyright Term Extension Act… or you’re
in the dustbin of history with Lenin and Trotsky.  In a political
battle, demonizing the opposition can be very effective. 

I’m sure this wasn’t what motivated DeLong’s original post.  But
to a reader, his sweeping generalization had that ring. 

De Long succinctly (if inadvertantly) shows the core problem:

“The FCM should be making important contributions
to the process of redefinition, but so far what we hear from it is why
property rights are bad, in whatever context happens to be under
discussion at the moment, except, perhaps, for the spectrum problem
mentioned by Werbach.”


I see a similar problem on the other side: property rights defenders
reflexively attacking alternative production models and
technology-necessitated limitations on rights.  Does that describe
all opponents of the FCM?  Of course not.  But the thoughtful
ones such as DeLong are letting themselves become intellectual cover
for the extremists.

That’s why this meta-debate matters.  In the confines of the
academy, we all trust each other’s intellectual honesty and can have a
nice conversation.  DeLong points to Polk Wagner, who has done
excellent work attacking the point of view that I support.  I see
Polk once a month at a Philly-area gathering of cyberlaw
afficionados.  We find common ground on some substantive points
and disagree on others, but I always respect his perspective.  In
my forthcoming spectrum paper,
I engage with other brilliant scholars like Howard Shelanski and Stuart
Benjamin who have written in the area.  That’s the nature of
intellectual debate — different sides advance claims and challenge one
another. 

The cold reality is that the Free Culture battle isn’t just being
fought in the halls of academe.  The scholarly discussion is part
of a larger debate taking place in Congress, the courts, corporate
board rooms, and the realm of public opinion.  We simply can’t
ignore the consequences of labeling opponents with too broad
brush.