After developing a theoretical framework for analyzing the regulation of digital media in his first book and charting how he foresaw an over-regulation of ideas in his second, Stanford law professor Lawrence Lessig sets out to show how copyright law is being manipulated to jeopardize the freedom of culture in Free Culture.

The subtitle, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, leaves little suspense as to what the central thesis is. In his usual manner, brick by logical brick, Lessig builds the claim that copyright legislation in the United States is currently being manipulated to serve the interests of big media and entertainment corporations, who are depicted as technologically lagging and afraid that the digital revolution is shifting the structure of the copyright market away from their established entertainment empires. He unambiguously charges them as the main culprits in tightening the grip of copyright legislation—at a detriment to those who wish to build on the culture of the past. While such a point may seem trite in view of Washington’s lobby-heavy brand of law-making, Free Culture’s main strengths lie in its empirical richness and in Lessig’s mastery at placing current legal developments in a wide historical context.

In the past, Lessig argues, Congress and the courts have traditionally responded to market-altering innovations by striking a balance between private interests and public benefit. And virtually every time, barring some caveats, new technologies were allowed to go forward and upset the status quo despite the legal challenges launched by the “dinosaurs” of the old technological regime, and at great benefit for both cultural innovators and the wider public. This was the case, for example, for what seem today to be technologies as benign as VCR, copying machines, and FM radio.

But Lessig’s view is that the US Congress and the US courts have turned their back on this tradition and are complicit in a vast expansion of copyright law that is having terrible effects on the creativity and competitiveness of the new players in the knowledge economy. Practices that were once tolerated and that once kindled the United States’ creative fires are today stifled by trigger-happy copyright lawyers, ever-expanding copyright regulations, and the prohibitive costs of finding the right copyright owners and clearing rights. The right to sample old material for criticism, parody, and reinterpretation, affectionately called “Walt Disney culture” by Lessig, is progressively disappearing under these burdens. Moreover, an alarming number of US citizens (counted in the tens of millions) are increasingly being labelled as “felons” and “criminals” for relatively minor copyright violations, and lawsuits are recklessly targeting any and all who, intentionally or not, come in the way of copyright holders. The stories used to illustrate this point include a college student who devised a more efficient way to access existing databases including copy-written works, and a twelve-year old girl guilty of peer-to-peer sharing—both sadly settling million dollar claims by big corporations for the entirety of their modest life savings.

Bridging back to Lessig’s strength, some of the more interesting parts of the book deal with digital media, where the argument is that US copyright law has become particularly draconian. Partly because digital display is systematically considered a “copy,” and partly because of the influence of Jack Valenti and the entertainment lobby, the scope and intensity of copyright protection in this respect has seen a dramatic explosion in the past two decades. Lessig rightly remarks that uses of material that were considered unproblematic in “real space” are today systematically considered breaches of copyright when online.

A constitutional lawyer by trade, Lessig also offers some interesting forays into democratic theory and places copyright issues in the context of a broader debate about civil liberties, public space, and creative freedom. In this respect, Free Culture comes perhaps to atone for Lessig’s self-avowed strategic mistakes in advocating (and losing) before the Supreme Court the recent Eldred vs. Ashcroft case on the constitutionality of the Congress’ power to lengthen the term of copyright indefinitely. His theory is that if the Congress were allowed to have such a power, the Progress Clause in the US Constitution, which provides that the term of copyright must be “limited,” would lose its effect. He chronicles the interesting story of how this theory was taken from the books all the way to the Supreme Court—only to be rejected by a strong seven to two majority. Ever the legal realist, Lessig concludes that the view of courts he refused to ascribe to—that they take decisions based on their values and what they view as important issues in society, and not strictly on legal reasoning—may have led him to his failure to convince them. In Free Culture, however, he certainly strives to go straight to the point and make an explicit empirical case against the widening scope and application of copyright law.

While Lessig persuasively argues that material property should be distinguished from intellectual property, he accepts the importance of creative property in today’s knowledge economy and lays to rest a very controversial topic by saying that most person-to-person sharing is probably wrong. And despite Lessig’s insistent rejection of the “free-for-all” position in the property debate, it is interesting to note the trajectory of his three major works: Code is almost exclusively a work of legal theory, The Future of Ideas is a distinctly more normative project, while Free Culture can be considered borderline activist. But along with the radicalization of his ideas also come several improvements: with time, his arguments tend to get clearer, more accessible to a general readership, and at the same time even more relevant to copyright law practice. It is also a great virtue of Free Culture that it does not sacrifice Lessig’s thorough legal reasoning, his broad, contextual legal analysis, and his gift for telling stories that often map the law’s significance more effectively than mere linear recounts of legal provisions and precedents.

On the other hand, one could easily charge Lessig with making a classically “historical” argument. He insistently buttresses his plea for freedom in culture on claims that “our tradition has never been a permission culture,” or that “we’ve never done this in our history,” implying that because something has always been so, it should necessarily be the same today. Although that is avowedly a part of his objective, lost in the shuffle is the fact that the past decade has also seen tremendous gains for the public domain and free culture as a result of the overall environment for content dissemination created by new technologies. As an astute and self-conscious scholar himself, he does concede this point tangentially—but it may still be lost on most readers as a result of the general impression one gets from his overall analysis. It is also a shame that he does not engage with Richard Posner and William Landes’ recent The Economic Structure of Intellectual Property Law, which makes a sensible and persuasive case for the extension of copyright protection.