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Free Culture

March 12, 2008

Free Culture[1]. 


Wow!  Intellectual property rights have certainly sorting out a great deal of issues over the last 15 years.  Since ICTs, the Internet in particular, have become a ‘graphic’ hyperscape no longer restricted to mere text we have seen a great deal of attempts to expand on the concept of “free use” of other’s creations.  So much so that a new area of law practice has evolved in the name of “Cyberlaw”.  Examples of practice area questions deal with computer crime, domain name, intellectual web design, freedom of expression, privacy, and technology licensing just to name a few.  However, most of these are the product of basic intellectual / patent law, contract law, criminal law, business law, tort law and a few others combined with the fact that the locus of the activity is in the virtual/digital medium.  This has created a practice area which concentrates on the basic legal principles enumerated above within a particular context.


Lessig’s call for ‘balance’ in administering property rights is well taken.  His analysis of the freedom of property rights vs the contingent power of ownership in the feudal system is very good.  In earnest he pleads that the central component of private property ownership arises from the unfettered ability to alienate yourself from your property in any degree that you wish.  Therefore, the absolute ownership of a property whether real, or intellectual is the right to give it away or sell it or rent it for a term or in any way you wish.  Feudalism was a system by which the powerful maintained the ownership of rights in property in perpetuity.  For example before 1640 a person might sell a property right and there would be a right of either redemption, or a contingency which would either in turn limit the exchange to either a term of years /or life of the grantor, or else upon an event (a person’s birthday for example) the property would return to the grantor or the grantor’s assign(s).  We still have this legal concept available for real estate and in lease of personal or real property.  But, we have limited it to a term of time so the property will not be affected for perpetuity.  The limit on patents is in part an evolution of this morph in law.


In Lessig’s analysis it seems that there are two primary issues in the use of patented property.  One: what the owner of the right may do with the property to the exclusion of other non-owners?  Two: what rights may be exercised by the non-owner of property in relation to non-exclusive use of the property by the owner of the right?  In addressing #1, Lessig strength of the concept of private property rights is that inherent right to completely release all rights in the property or any part thereof.  This is strengthened by his discussion of concepts such as open courses and free ware.  For example the strength of the patent or copyright on freeware is that it is precisely the owner of that right that should be able to determine what it is used for.  This is a simple enough proposition and seems to reflect our American ideology of freedom.  The problem arises in #2 above, when considering the owner who does not wish to give away, reduce value in, or even sell for that matter a property use or right in something.  Lessig argues against the U.S. government’s intervening in the African importation law case.  The question to society and particularly American society was should the U.S. government intervene?  Some might say what is the harm in Africa buying the drug that has been manufactured in another country?  Without getting into the legal analysis the basic thought is this:  to allow a patented drug to be marketed in areas outside the U.S. FDA controlled market is to encourage black market generics and potentially undercut drug mixtures which may be dangerous.  So one issue is that there arises a potential for harm to the users of the drugs.  Perhaps more important is that Americans (who are supposedly protected by FDA) are increasingly traveling and buying medications out side the U.S.  Many are not up to standard and this increases potential for injurious use, and more importantly drives down the demand for American drugs which arguably cost more because of the need to recoup R&D, marketing and other costs.  Hence, potential for great economic harm to American producers and a potential chilling of research (no profits).  After all the pharmaceutical companies are in business to make a profit.


I agree!  I believe in freedom to dispose of your property as you wish, but in balancing need vs property rights there are times that a central party must step in for the balancing analysis to be properly devised.  While still preserving property rights there may be a ways in which more property may be shared without loss of recompense.  For example Pandora radio is marketed as free.  I listen to it all the time and select artists and their recordings in full length stream.  Although marketed as free is it really free?  True, I do not have to pay with money, but I know that I do pay.  How?  With cookies, right?  Part of my personal life is exchanged in some myriad of hypertext corridors of space.  Somewhere a composite of my habits and changes are being constructed.  Why?  I can only hope for marketing.  That would be the least of my concerns.  Otherwise let your imagination run wild!


Same goes for open software.  If you have not looked at the open office software take a look.  Our old friend Google is again involved in this endeavor.  Actually the software is quite good.


Just as a byline you might find the following “open letter” from Paul Gerhardt, Co-ordinator
Creative Archive License Group
on revising the license so those other than in the UK might enjoy the Free Culture software.

Basic rules of  Creative Archive  :

[1] Lessig, L. (2004). Free Culture. (Creative Commons Edition). New York: Random House.

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