Free the media.

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, by Lawrence Lessig (Penguin, 368 pp., $24.95)

THE motion-picture and video industries employ over a quarter-million people and collect $55 billion in annual revenue. Book sales last year were $27 billion, based on 150,000 new titles and editions (up from 100,000 in 1992) and over 4 million books already in print. Also in 2003, the sound-recording industry shipped 798 million units with a value of $11.9 billion--down from the 1999 high of 1.16 billion units worth almost $14.6 billion, but still a big number, and one that does not include downloads for Apple's iPod or other legitimate services. One can drown in the oceans of data proving the vitality of America's creative spirit: Tens of thousands of people are working to carve a niche in the world of arts and entertainment, and millions of others are paying them for doing so. But in the new book Free Culture, Lawrence Lessig tries to say it's an illusion. Lessig, however, likes stories rather than data, so such numbers would have little place in his book anyway.

The book itself is thin gruel, alternating between horror stories and polemical abstraction. It is more diluted than Code, the 1999 book that made Lessig a star in cyberland, and the 2001 follow-up The Future of Ideas. One suspects the familiar phenomenon that once a brand is established, the faithful will praise and buy, so quality becomes unnecessary. And this is a work for the faithful: It seems designed to promote Lessig's status as the gonfalonier of the Free Culture Movement, a loose alliance of academics and cyberites who have serious problems with current copyright laws. Their program--so far as one can determine, because its spokesmen, including Lessig, are elusive--is to shorten copyright terms, drastically circumscribe copyright protections against derivative works, widen concepts of "fair use" (and outlaw any method of digital encryption that would interfere with the expanded definition), and wipe out inhibitions on file sharing over the Internet (including lawsuits by offended copyright holders).

The ultimate goal of the Movement seems to be to cut the links between creative work and the market system. (Lessig declares himself a disciple of Richard Stallman, the founder of the Free Software Foundation and a man who believes that the use of any proprietary software is immoral.) As to details, such as how the stuff will be produced if it is not protected and paid for, the Movement is coy. Their usual stance is that creative product should be free as in "free of the need to obtain permission before using it, modifying it, or redistributing it," not free in the sense of "free beer." Of course, they say, creators should be paid. This position is nonsense: If a creator has no power to stop redistribution, he has no power to collect payment. But taking this incoherent stance allows the Free Culture Movement to feign outrage at any suggestion that its advocates are against property rights.

Lessig's answer to the problem of financial support is to spend a page and a half on an idea floating around academia that the government should fund music by socializing it. "An appropriate tax" would be levied, and the pot divvied up according to the number of downloads of each item. This is a strange idea, full of practical problems; it would be even more difficult to apply to movies, software, games, or books, which will present the same Napsterization problems as music once true broadband becomes available to consumers and download times decrease.

Nor are the horror stories Lessig uses to prove the degeneracy of the copyright system particularly impressive. The Free Culture Movement has a long memory, and it has not yet forgiven the London booksellers for monopolizing the printed word back in the 17th century. Similarly emphasized are Thomas Edison's efforts to enforce his patents on the movie camera, the resistance of sheet-music publishers to the player piano, and the suppression for decades of FM radio (which Lessig attributes to RCA, with barely a mention of the FCC and the heavy hand of government). The Movement is forced to rely on past issues--and its interpretation even of many of them is not exactly nuanced--because its contemporary horror stories are so unimpressive. For the most part, they represent genuine problems, but of a minor kind: issues that should and can be addressed by the legal process through measures considerably short of uprooting the whole copyright system.

Lessig makes much of a documentarist who deleted a scene in which 4.5 seconds of a Simpsons episode played in the background, because Fox refused permission for less than a princely sum. Lessig acknowledges that every lawyer agrees that the filmmaker had a right to use the material under existing "fair use" doctrine, but, says our author, lawyers are too expensive, so it was snipped. This is not a convincing example: That use of the clip is fair use, no question, and any judge should agree. Lawyers do cost too much, so there is a problem when rights are uncertain, as is always true during times of technological change; but sorting out fair-use doctrine is a project for a few years of common-law thinking, not an excuse for blowing up the system. Further, if we had adopted the English rule of "loser pays," the documentary maker could have afforded to litigate--so why not focus on that problem, rather than on the copyright system, which would actually have reached the right answer had anyone asked it to do so?

Nor do the horror stories show serious inhibitions on creativity. The impingements are on re-mixers who want to mix the Beatles with a rapper, or on the professor who wants to use film clips in a class. There is simply no indication of major losses to the creative enterprise writ large, nor any consideration given the proposition that strengthening property rights and markets and reducing transaction costs might do far more for the creative community than would wiping out its ability to make a living from its art. One gets no sense in Free Culture of the fact that the copyright system is a mechanism by which consumers get together and agree on rules that will enable them to pool their resources and persuade creators to produce. Obviously, I would like to get the stuff for free while others pay; you would like a similar system. Things cannot work that way, so consenting adults get together and agree that all will pay.

Which brings up the final point about the Free Culture Movement: There is something childish about it. Its major interest--albeit swathed in a 1960s-era mythology of "all creative power to the people"--seems to be in getting stuff for free, as opposed to finding practical ways to nurture creativity. Read this book, and you'll realize why adult supervision is necessary.

Mr. DeLong is director of the Center for the Study of Digital Property at the Progress & Freedom Foundation, Washington, D.C.