NYTimes Book Review of Free Culture [10:11 am]
The biggest issue in intellectual property today is how to handle Internet file-sharing, and Lessig has some interesting thoughts. Most analyses wrongly lump all file-sharing together as piracy, he says, when there are four distinct types: a) downloading content, like a Madonna CD, instead of buying it; b) sampling content before buying it; c) downloading content that is no longer commercially available; and d) downloading content that is not copyrighted, or that the rights owner wants to share. Only type d) is currently legal, but Lessig contends that b) and c) do not do any harm. The Napster problem can be solved, he suggests, by finding a way to deal with the harm that type a) file-sharing does to copyright holders.
After taking us to this critical point, however, 300 pages into his analysis, Lessig fails to deliver. There is, he says, a ”relatively simple way to compensate” copyright holders who are hurt by the more harmful kinds of downloading. He proposes a fund to pay creators whose work is shared, to be underwritten by ”an appropriate tax.” But after a brief description of the idea, which sounds on its face both impractical and politically unattainable, he refers the reader to another law professor’s book — one that has not yet been published, in fact — for a fuller explanation. Given the importance of ”Napsterization” to copyright today, it is hard not to feel cheated by this tease of a conclusion.
If Lessig’s views prevail, however, it will be far easier to produce derivative works that build and improve on existing expression. In that case, it is entirely possible that a future theorist will produce a book that starts with Lessig’s erudite explication of intellectual property law, and adds an equally thoughtful proposal for addressing the most difficult issue confronting it.