Bret Swanson had a great post plugging Chris Anderson’s upcoming book Free, which I expect to be every bit as interesting as his first book. But he then concluded his post with what seems to me like a totally gratuitous swipe at Larry Lessig’s brilliant book, Free Culture, which he characterizes as “about the demonization of property and profits” and “imposing a radical new utopian and quasi-socialist agenda on our imperfect but highly productive and creative capitalist economy.”
This left me wondering if we’d read the same book. Lessig of course criticizes large companies who have lobbied for changes in copyright law that benefit themselves at the expense of consumers. But I would regard that as “criticizing rent-seeking,” not “demonizing profits.” When Cato attacks corporate welfare, nobody thinks that’s anti-capitalist.
And I have absolutely no idea what “radical new utopian and quasi-socialist agenda” Lessig is advocating, or upon whom Swanson thinks it would be “imposed.” The changes Lessig advocates would mostly undo the changes to copyright law that the content industries have pushed over the last three decades: longer terms, abandonment of formalities, anti-circumvention rights, harsher penalties, erosion of fair use. For the most part, Lessig’s “radical new utopian and quasi-socialist agenda” is also known as “American copyright law circa 1975.”
Now, Lessig certainly has some ideas I disagree with. Some of them might even be characterized as anti-property or anti-profit. But the ideas in Free Culture certainly aren’t among them. To the contrary, as the Wall Street Journal‘s review of Free Culture pointed out, the central theme of Free Culture is something conservatives normally celebrate: reducing the role of government and lawyers into Americans’ ordinary lives. Over the last quarter century, the regulatory regime that is copyright law has intruded on more and more aspects of our daily lives. While there may very well be good policy arguments for some of these changes, as Swanson’s own colleagues have forcefully argued. But there’s certainly nothing unlibertarian about worrying that increased government involvement in peoples’ lives will have negative consequences.
But don’t take my word for it. Listen to Milton Friedman, Kenneth Arrow, James Buchanan, Ronald Coase, and Thomas W. Hazlett, all of whom weighed in on Lessig’s side in the Eldred decision, a case Lessig discusses extensively in Free Culture. Listen to noted libertarian scholar Richard Epstein, who agrees with Lessig that copyright law has been applied too aggressively to documentary filmmakers. Free culture is about what its title suggests: freedom. One can (and Swanson’s colleagues have) make a coherent argument that the freedoms Lessig champions are less important than the need to create incentives for the production of creative works. But it’s inaccurate to describe a book about freedom as “utopian and quasi-socialist.”
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