Yochai Benkler and Lawrence Lessig fight to free our culture from the grip of the past; their works complement one another as both have unique perspectives on the struggle for freedom in the digital age. Benkler focuses on how the propertization of the information environment is causing a loss of personal autonomy. Lessig argues that the balance between property protected by copyright and the rights of people to build on creative work is skewed. Lessing’s book Free Culture and Benkler’s article, “Siren Songs and Amish Children: Autonomy, Information, and Law.” both speak towards providing a legislative environment that promotes and expands personal autonomy and free access to content within the digital commons. It is the legal environment surrounding the digital media revolution that is in turmoil. The quick ascendancy of the digital age has brought the limitations of current copyright law into sharp relief. New technology such as Peer to Peer file sharing (P2P) has changed how a computer literate public can access, modify, and broadcast media content to each other. The pre-Internet media distribution system is fighting back against this new distribution system and its inherent creative capital, in an effort to reassert control over the media. Corporate influence over the legislative bodies has led to a grim tide of legal victories for the current media distributors and against free access to content in a digital commons. Legislation like the Digital Media Copyright Act, and near-perpetual extensions to the Copyright Act, threaten to smother the new freedom made available by the digital media revolution. The media corporations are influencing the law heavily in favour of their desire for an absolutist, perpetual copyright scheme. The forces opposing corporate media are fragmented and scarcely heard in the mainstream. The battle they fight is not for a copyright free anarchist interpretation, but rather a compromise that establishes both a relatively lawyer-free digital commons, and a formalized copyright structure to protect the rights of the authors and people who seek to use their work.
It is the intent of this paper to show that the normative social costs of a permission based culture are too great a burden for a society that values creativity and autonomy to bear. Culture, digital or otherwise, must be made available to everyone for the culture to grow. The paper will be divided into three sections.
Section one will start with the idea of what a permission based culture is and how the digital revolution is changing the way people interact with each other. Some of the key legal issues that currently dominate the debate and structural issues of the Internet will also be discussed. Section two will discuss how autonomy, creativity and democracy are interrelated how they interact with copyright within various modes of cultural expression. Section three will put forth the idea that the digital revolution is evolutionary in nature and will propose a compromise position in which the transition to a fully realized digital age might be realized.
Understanding the quiet struggle for freedom in the digital age begins with describing where we are now and how the existing legal structures and those of the Internet affect how we interact. A permission based culture is a fully copyrighted culture: there is no fair use, no commons; every idea is owned. A perfect iteration of permission based culture would follow the flawed assumption: “if value… then right”. That is to say that if I take creative work [which possesses inherent value] and use it in any way, I must have permission to do so, since it necessarily must be someone’s property. To use it without permission is piracy. Lawrence Lessig, an advocate for a rational copyright policy, skewers this notion with the example of a composer suing Girl Scouts for singing his song around a campfire. Lessig finishes curtly with the following rejoinder: “Instead [of a