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Lawrence Lessig's Free Culture is an important book for many readerships: artists, policymakers, and college students, among others. But its arguments for loosening the restrictions of copyright law are crucial for film historians and archivists at the current moment in the digital revolution. Although new technologies have created many exciting possibilities for film educators, scholars, and archivists, the law is increasingly closing off avenues for using new technologies. It is easier than ever, for example, to use clips in the classroom and make them available to students, but it is also ille-gal to decrypt DVDs in order to extract clips. Archivists today have untold numbers of new tools for the restoration and distribution of decaying films that are of value only to scholars and cinephiles. But the chance that those films will ever fall into the public domain is becoming slim. Lessig argues that the Internet is being subjected to tighter controls than earlier developments in communication technology. It is precisely the openness built into copyright law's response to recorded music, radio, and cable television that allowed both those technologies and culture itself to flourish. (He includes films in this list too, but more on that in a moment.)
Lessig is a well-known law professor at Stanford, who has written two previous books addressing intellectual property law. He also argued the case of Eldred v. Ashcroft before the Supreme Court in 2003. Free Culture is a work of activism; it is a careful, clever, and engaging polemic. Lessig is one of the leaders of the free culture movement, a movement that has existed for a number of years but now takes its name from his book. There are currently more than a [End Page 167] dozen official free culture chapters on university campuses alone. The free culture movement's inspiration comes from Richard Stallman and his Free Software Foundation, the beginning of the now important and powerful free and open-source software phenomenon. Lessig, like Stallman, is fond of saying that he does not advocate free culture as in free beer. He is fighting for the freedom to build upon, use, consume, study, and preserve culture.
In the Eldred case, for example, Lessig attempted to overturn the Sonny Bono Copyright Term Extension Act (CTEA), which extends the term of copyright to the life of the author plus seventy years or a fixed term of ninety-five years for works of corporate authorship (the category most film falls into). In other words, an entire generation of films that would have begun to fall into the public domain will remain under the lock and key of copyright law for another twenty years—a major setback for anyone who cares about film history. This remains true even though, as the court itself admitted, less than 2 percent of those works will continue to have commercial value. The CTEA also extends the problem of so-called orphan works—works whose copyright holder cannot be located. Orphan works present another major impediment to film preservation, because many institutions will not proceed with a restoration without the copyright holder's permission. There are some valid reasons for extending copyright terms. Copyrighted works are a major U.S. export, and the CTEA created parity between U.S. and E.U. law. In the short term, failure to extend copyright terms would have created a drain on the U.S. export economy. But one could also argue that, in the long term, the end of Disney's monopoly on Mickey Mouse would have forced the company to create new works in order to survive: the major goal of copyright legislation in the first place.
In Free Culture, Lessig takes on the major corporate players again, this time by reclaiming and redefining the terms pirate and piracy. He agrees with the Motion Picture...